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THE INITIATIVE 
REFERENDUM AND RECALL 



NATIONAL MUNICIPAL LEAGUE SERIES 

THE INITIATIVE 
REFERENDUM 
AND RECALL 

EDITED BY 

WILLIAM BENNETT MUNRO 




NEW YORK AND LONDON 

D. APPLETON AND COMPANY 

1920 



i^i^&n;3jan 9 h' y :'t 









Copyright, igi2, by 
D. APPLETON AND COMPANY 



Printed in the United States of America 

THUJffBFBB 



398726 



DIB 398726 



PREFACE 

This volume represents a substantial contribution 

to the further careful and thoughtful discussion of a 

widely considered plan of reform. Professor Munro 

brings to his task as editor not only a comprehensive 

knowledge of the subject treated — direct legislation as 

it is popularly known — and a deep sympathy with the 

c^t movement to correct the undoubtedly and undisputed 

£2 evil results of r ep re's ent alive government, but, what 

c ~ ) is of prime importance, a sound perspective and with- 

co out local prejudice. 

I — Some of the chapters in the volume are new, hav- 

ing been specially prepared for it. Others have been 

taken from the substantial list of papers which have 

been presented to the National Municipal League dur- 

K ing the past decade of years. Still others, like those 

■a of Colonel Roosevelt and Congressman McCall, have 

u been selected from the current periodical discussion of 

the problem. All have been brought together by Mr. 

Munro in furtherance of the League's function as an 

open forum, to give both sides fairly, and to recount 

results fairly, so that the publicist and student may 

form an enlightened and sound opinion. 

Chosen for this purpose, the articles are not the 



PREFACE 

hasty words of agitators or demagogues, but the 
thoughtful utterances of public men of experience, 
who appreciate the problem and its difficulties and 
their own responsibilities as leaders. 

The Initiative, Referendum and Recall are here, 
and we are destined to hear more, rather than less, of 
them. Whether they are to become permanent fea- 
tures of our governmental (federal, state and munici- 
pal) machinery, or merely to afford the means of cor- 
recting the abuses of the present-day operation of 
representative government, is a question which only 
time will determine. This volume is put forth with 
the expectation that it will afford definite, dispassion- 
ate information and careful, disinterested argument, 
so that the most may ,1?£ made of the democratizing 
influence of the reform and the gx'eatest possible good 
developed from the movement. 

To all who have cooperated in the making of the 
book the appreciative thanks of the Publication Com- 
mittee of the National Municipal League (William B. 
Howland, Chairman, New York; John Ihlder, New 
York; Clinton Rogers Woodruff, Philadelphia; Prof. 
L. S. Rowe, Philadelphia; Richard S. Childs, New 
York) are herewith cordially tendered. 



CONTENTS 



CHAPTER PAGE 

I. — Introductory. By the Editor i 

II. — Nationalism and Popular Rule. By Colonel 

Theodore Roosevelt 52 

III. — The Issues of Reform. By Governor Woodrow 

Wilson . . 69 

IV. — The Development of Direct Legislation in 

America. By Robert Treat Paine ... 92 

V. — The Referendum in the United States. By 

President A. Lawrence Lowell . . . .126 

VI. — Direct Legislation as an Ally of Represent- 
ative Government. By Professor Lewis 
Jerome Johnson 139 

VII. — Representative as Against Direct Legislation. 

By Congressman Samuel W. McCall . .164 

VIII. — A Defence of Direct Legislation. By Senator 

Jonathan Bourne, Jr 194 

IX. — The Practical Workings of the Initiative and 

Referendum in Oregon. By Joseph N. Teal 217 

X. — A Year of the People's Rule in Oregon. By 

Professor George E. Eaynes .... 233 

vii 



CONTENTS 

CHAPTER PAGE 

XI. — The Unfavorable Results of Direct Legisla- 
tion in Oregon. By Frederick V. Holman. 279 

XII. — The Use of the Recall in the United States. 

By Herbert S. Swan 298 

XIII. — The Recall as a Measure of Popular Control. 

By Thomas A. Davis 313 

XIV. — The Recall in Los Angeles. By Charles Dwight 

Willard 321 

XV. — The Recall in Seattle. By Fred Wayne Catlett . 326 

XVI.— Sources and Literature 342 

Appendix 349 

Index 351 



vm 



THE INITIATIVE, REFERENDUM 
AND RECALL 

CHAPTER I 

INTRODUCTORY 

There has been no more striking phenomenon in 
the development of American political institutions dur- 
ing the last ten years than the rise to prominence in 
public discussion, and consequently to recognition upon 
the statute-book, of those so-termed newer weapons of 
democracy — the initiative, referendum and recall. By 
the initiative is meant the right of a stated percentage 
of the voters, in any state or municipality, to propose 
both constitutional and ordinary laws, and to require 
that, if these be not enacted forthwith by the state or 
municipal legislature, they shall be submitted for rati- 
fication to the whole body of voters. By the referen- 
dum is meant the right of a stated percentage of the 
voters to demand that measures passed by the ordinary 
lawmaking bodies of the state or municipality shall 
be submitted to the whole body of voters for accept- 
ance or rejection. By the recall is meant the right of 
the electors in any state or municipality to end by an 
adverse vote the term of any elective officer before the 



THE INITIATIVE, REFERENDUM AND RECALL 

expiration of the period for which he was elected. 
However opinions may differ concerning the inherent 
merits and defects of these agencies of popular gov- 
ernment, or concerning their compatibility with a 
sound representative system, it is at all events not to 
be denied that they have gained, during recent years, 
a remarkable hold upon the confidence of a large 
and apparently growing portion of the American 
electorate. 

For this growth in popularity a twofold reason 
may be assigned. On the one hand it is a logical by- 
product of a declining popular trust in the judgment 
and integrity of elective legislators. The calibre of 
the representative body, whether in state or city, is 
not what it used to be, and of this deterioration public 
opinion has taken due cognizance. Whatever the 
reasons therefor, and they are probably too complex to 
warrant easy generalization, the symptoms of legisla- 
tive degeneracy have grown too plain to be disre- 
garded. Resort has accordingly been had to the most 
superficial of prudential measures, which is to take 
away from the wicked and slothful servant even that 
which he hath. For maladministration in a democracy 
the electorate never regards itself to blame ; the demos 
postulates its own infallibility. Hence it has sought to 
remedy the evils which seem to result from an unsatis- 
factory representative personnel, not by the adoption of 
measures designed to secure an improved grade of 
officeholders, but by reducing the final powers which 
the officeholders may exercise. In other words, the 

2 



INTRODUCTORY 

growth in popularity of direct legislation evinces a 
public disposition to revoke the trust rather than to 
change the trustees. 

In the second place, the representatives of the people 
have themselves shown readiness to aid the movement. 
American legislative bodies do their work under seri- 
ous handicaps arising from the lack of efficient 
leadership and from the division of power and 
responsibility which is inherent in the system under 
which they are expected to perform their functions. 
Thoughtful men, alike in the state legislatures and in 
the large city councils of most American cities, have 
come to realize that efficient legislation requires both 
leadership and the centralization of responsibility; 
American legislative bodies have possessed neither. In 
the absence of these features, sinister influences comj 
into full play upon the floors of legislative chambers. 
Representatives find that they can take sides on many 
questions of policy only by placing themselves in such 
position that they are bound to antagonize some power- 
ful organized interest, no matter which side they may 
take, so that to turn the whole matter over to the issue 
of a popular referendum constitutes for them the line 
of least resistance. The referendum in particular has 
thus become the Torres Vedras of the legislator whose 
first care is. for his own political future. The practice 
of passing bills to enactment "with the referendum 
attached," has become common in many states during 
recent years, and measures for which the legislature 
is not ready to take full responsibility are being more 

3 



THE INITIATIVE, REFERENDUM AND RECALL 

and more readily turned over to the electorate for 
acceptance or rejection. At first an exceptional pro- 
cedure, this practice has shown a tendency to seek rec- 
ognition as a normal method of lawmaking; the legis- 
latures have taught the voters to expect that they 
shall be freely called upon, not only to select representa- 
tives, but to give a direct decision upon issues of policy. 
Hence appear the two outstanding reasons for the 
recent development of direct legislation in Ameri- 
can state and municipal government. A declining 
public confidence in the efficiency and integrity of legis- 
lators, and a readiness on the part of representatives 
to place upon the shoulders of the voters a responsi- 
bility which ought properly to remain upon their own ; 
these two tendencies have combined to give direct 
legislation its growing vogue. 

Notwithstanding a current impression to the con- 
trary, direct legislation is not new either in principle 
or in practice. The initiative and the referendum are 
new names for very old institutions. All ancient 
democracy was direct democracy; and so far as there 
was legislation in early democracies, it was direct legis- 
lation. The government of the primitive Saxons, if it 
may be called a government, was vested in the hands 
of a popular assembly, composed of all the adult tribes- 
men, and this assembly exercised directly, without the 
interposition of any representative body, the whole 
civil and military authority. In Switzerland, where 
alone among the lands of Europe the great centripetal 
influence of monarchical absolution did not make itself 



INTRODUCTORY 

strongly felt through the Middle Ages, systems of 
direct popular government came early into existence 
and remained until modern times. Even in America 
the initiative and the referendum are among the oldest 
of native institutions : they may properly be called 
indigenous, for these agencies of popular government 
were not borrowed by the American people from any- 
where outside their own land. They were brought into 
being upon this side of the Atlantic to meet the special 
problems which a new government had to face. Mas- 
sachusetts submitted her first constitution to a popular 
referendum in 1778, and again, this time with a favor- 
able response, in the following year. As a means of 
ascertaining the will of the voters upon constitutional 
questions, the expedient quickly found favor in other 
states, and the use of the referendum as the ordinary 
method of enacting organic laws in time became gen- 
eral. 1 The initiative, likewise, obtained recognition in 
principle, at any rate, when the first constitution of 
Georgia in 1777 gave to the people the exclusive right 
of proposing changes in that document. Other eight- 
eenth-century constitutions, notably those of Massa- 
chusetts, Pennsylvania and New Hampshire, reserved 
to the people, not the right to initiate legislation, but 
what amounted to at least a permissive initiative — the 



1 Not yet entirely so, however, for during the last twenty years 
four state constitutions have gone into force without popular approv- 
al namely, those of South Carolina (1895), Delaware (1897), Louisiana 
(1898) and Virginia (1902). 

5 



THE INITIATIVE, REFERENDUM AND RECALL 

right " to give instructions to their representatives " in 
the legislature. 

The use of the referendum in the process of ordi- 
nary, as distinguished from constitutional lawmaking, 
began in America a half-century later. The legislature 
of Maryland, in 1825, referred to the people of that 
state the question of establishing free primary schools, 
and stipulated that the law should go into effect only in 
such counties as might pronounce in the affirmative. 
Other state legislatures followed the same procedure 
in cases where the issue did not seem to be readily 
determinable otherwise, and in due course provisions 
began to be inserted in state constitutions requiring 
that all ordinary laws affecting certain matters should 
be submitted, before final enactment, to the people of 
the entire state or the voters of the counties or munici- 
palities affected. Typical examples of matters upon 
which some constitutions have made the referendum an 
essential preliminary to enactment are changes in the 
suffrage laws, alterations in the state boundaries, 
changes in the location of the state capital or of the 
various state institutions, measures pledging the credit 
of the state or giving state aid to private enterprises, 
and modifications in the laws relating to state taxa- 
tion. 

But the practice of referring matters to a popular 
referendum has made its most steady progress in the 
realm of local government. The wide variety of 
interests which often appeared to be affected by general 
legislative measures relating to local administration, 

6 



INTRODUCTORY 

and the seeming impossibility of providing state-wide 
rules which would serve the needs and desires of all 
the municipalities, large and small, soon led the state 
legislatures to the practice of entrusting such matters 
to the decision of the localities themselves. The regu- 
lation or prohibition of the traffic of intoxicants was 
perhaps the most prominent of the matters within this 
category, and it is a question upon which there have 
been more popular referenda in American municipali- 
ties than can easily be counted. Indeed it has come to 
pass that, in some states of the Union, the cities and 
towns, look upon the privilege of deciding this question 
at an annual referendum as a sort of inalienable right 
of the community. So, likewise, such matters as the 
adoption of a new city charter, or the adoption of 
amendments to an existing charter, the alteration of 
municipal boundaries, the issue of municipal bonds, 
and the granting of long-term franchises to public 
service corporations, are all matters upon which the 
voters of cities and towns have frequently been called 
upon to pass judgment at the polls. Sometimes the 
constitution of the state requires submission of such 
matters; at other times the requirement is statutory 
only; and in still other instances the referendum is 
ordered by the authorities of the municipality itself. 
To the practice of submitting matters to the voters of 
a municipality, or to any portion of the whole body of 
state voters, there is no serious constitutional objection. 
But the state-wide referendum, that is to say, the sub- 
mission by the legislature of a measure to the voters 

7 



THE INITIATIVE, REFERENDUM AND RECALL 

of the entire state for final adoption or rejection by 
them, meets the objection that such reference consti- 
tutes a delegation of legislative power. And in the 
absence of specific constitutional permission, such dele- 
gation has usually been held by the courts to be ultra 
vires of the legislature. It has been urged also that 
states which adopt the mandatory initiative and refer- 
endum thereby contravene that provision of the United 
States constitution which guarantees to every state in 
the Union " a republican form of government." But 
this idea has not as yet found support in any judicial 
decision. 

While the two agencies of direct legislation — the 
initiative and the referendum — are logically related and 
supplement each other, the latter can exist and serve 
many of its professed ends without the former. And 
as a matter of fact the referendum moved along during 
the greater part of the nineteenth century under its 
own steam. The principle of the initiative, which is 
that a stated percentage of the voters of a state or 
municipality shall have the right to propose a measure 
and to require that such measure be submitted to the 
people for their adoption, was given recognition at a 
very early date in American political history. But its 
progress for a full century was slow, much slower than 
that of the referendum. Where it did appear in the 
constitution or the laws, it was rarely brought into 
operation unless it happened to be the only way in 
which legislation relating to certain matters could be 
brought forward. Not infrequently the initiative did 

8 



INTRODUCTORY 

provide the only way. When, for example, a state con- 
stitution inhibited the legislature from enacting any 
special legislation for individual cities, how could the 
special needs of a particular city be provided for ? The 
natural way is, of course, to let the citizens of a particu- 
lar municipality set forth their own demands by a peti- 
tion, which is, in other words, to exercise the initiative 
in legislation. Constitutional provisions which forbid 
the legislature from enacting laws of this, that, or the 
other sort, have become steadily more numerous during 
the last quarter of a century, and their increase in num- 
ber has given a powerful impetus to the spread of direct 
legislation. South Dakota was the first state to adopt 
the initiative and referendum as normal agencies 
wherewith the electors of the state might directly con- 
trol the making of all ordinary laws, for an amend- 
ment to the South Dakota constitution, made in 1898, 
permitted the initiative to be exercised and the referen- 
dum to be invoked by five per cent, of the voters. 
Other states which have incorporated similar provisions 
in their constitutions during the last ten years are: 
Utah, in 1900; Oregon, in 1902; Nevada, in 1904; 1 
Montana, in 1906; Oklahoma, in 1907; Maine, in 
1908; Missouri, in 1909; Arkansas and Colorado, in 
1910; Arizona and California, in 191 1; and New 
Mexico (referendum only), in the same year. 

The provisions relating to direct legislation in these 

1 Nevada in 1904 made provision for the referendum only; but an 
amendment providing both for the initiative and the recall is now 
being submitted to the voters. 

2 9 



THE INITIATIVE, REFERENDUM AND RECALL 

various states are alike in fundamentals, but differ in 
many important details. In all of them the referendum 
is obligatory as a method of adopting constitutional 
amendments, but in two of them, Montana and Maine, 
constitutional amendments are excluded from the scope 
of the initiative ; that is to say, the voters of these two 
states are allowed to pass upon all proposed changes in 
the organic laws, but are not permitted to do the pro- 
posing. In the matter of ordinary laws, moreover, 
there are various limitations upon the scope of direct 
legislation. A common proviso is that which excludes 
from the operations of the initiative and referendum 
all measures which carry appropriations for the current 
expenses of state government, or for the maintenance 
of state institutions. The constitutions of Maine, Mis- 
souri, Montana and South Dakota contain this restric- 
tion. Another limitation, which exists in practically 
all the states which have adopted the initiative and 
referendum, is that which exempts from their scope 
all emergency measures, that is, laws which seem 
urgently necessary in the interest of the public peace 
or for the preservation of the public health. As a pre- 
caution against the abuse of this right of the legisla- 
ture to act freely and finally in emergencies, it is 
usually provided that measures passed under this pro- 
viso must have obtained a two-thirds majority in each 
branch of the legislature. But lest this safeguard 
should not prove adequate, the constitutional provisions 
in some cases go further and expressly declare that 
certain classes of measures may not in any case be 

10 



INTRODUCTORY 

deemed emergency laws. Among measures so enumer- 
ated, are statutes granting franchises for a longer term 
than a single year, legislation authorizing the purchase 
or sale of lands, and laws changing the charters of 
municipalities without a local referendum. 

In the machinery of direct legislation there are also 
some marked variations. The percentage of voters 
required for putting the initiative into operation is 
eight per cent, in some states and five per cent, in 
others. 1 Oklahoma requires fifteen per cent, in the 
case of constitutional amendments, but only eight per 
cent.^ in the case of ordinary statutes. Generally speak- 
ing, the same quota of voters may demand a referen- 
dum upon any measure passed by the legislature. Like- 
wise the procedure differs from state to state in such 
matters as the basis upon which this percentage is 
calculated, the methods of verifying signatures to peti- 
tions, the time and place of filing petitions, and the 
arrangements for giving due publicity to measures 
proposed. In the last-named matter, most of the states 
which have adopted the system of direct legislation 
arrange for printing and distributing, at the public ex- 
pense, full texts of all measures which go before the 
people. Some of them have the additional provision 
that arguments pro and con shall, under suitable limi- 
tations, be published and sent broadcast at the cost of 
the state exchequer. In South Dakota referenda may 
take place only at a regular election, but in the other 

1 In Maine the requirement is not a percentage but 12,000 voters. 

11 



THE INITIATIVE, REFERENDUM AND RECALL 

states special elections may be ordered. Ordinarily 
a measure may be re-submitted as often as the required 
number of petitioners can be found to demand it; the 
Oklahoma constitution is the only one which affords 
any adequate safeguard against abuses arising from 
the frequent re-submission of defeated proposals. A 
measure rejected by the voters of that state may not 
be again referred to them within three years, save on 
petition of twenty-five per cent, of the voters — a prac- 
tical impossibility. 

The state of Illinois has adopted a system which is 
intended to secure the advantages of direct legislation 
while preserving the actual lawmaking functions of 
the legislature. Measures may be initiated by popular 
petition, and when so originated, go to the voters at 
the polls. But acceptance at the polls does not, as in 
the other states, enact the measures into law. The 
action of the voters is merely advisory in effect, and 
operates as an instruction to the legislature, which 
alone retains the power of actual enactment. The 
laws of Texas, again, provide for initiative and refer- 
endum as agencies for framing party policy. A speci- 
fied number of voters (ten per cent.) in any political 
party may propose planks for the party platform and 
may secure a party vote thereon. The opinion of the 
party adherents, as thus expressed, becomes an instruc- 
tion to all party conventions, cdmmittees and officials. 

But, as has been already stated, the greatest develop- 
ment of direct legislation has taken place in the field 
of municipal government. Here it has gone hand in 

12 



INTRODUCTORY 

hand with the movement for simplifying municipal 
machinery and for ousting* party organizations from 
that dominating place in city government which they 
have ldng maintained. The spread of the commission 
type of municipal administration has given the initia- 
tive and referendum much of their present-day vogue 
in new city charters. To be more accurate, one should 
say that each movement has supplemented and helped 
the other. A system of city government by a single 
commission of five men would doubtless have appeared 
to possess great possibilities of danger and would 
hardly have reached its present degree of popular- 
ity had not the sponsors of the plan put forward 
schemes of direct legislation as a means of replacing 
the old checks and balances which the adoption of the 
commission system eliminates. It is true that the cities 
which first adopted the commission plan, Galveston, 
Houston and other Texan municipalities, did not give 
the initiative, the referendum, or even the recall a 
place in their new charters. They placed their full 
faith and credit in the representative type of local 
democracy. That is one reason why northern cities 
first looked askance at the Texas experiment. The 
Des Moines plan, which is the Texas system plus pro- 
visions for direct legislation and non-partisan nomina- 
tions, appealed more readily to public confidence. 
Government by commission has secured adoption in 
over two hundred American cities. Of this number 
the great majority (that is to say, in nearly all except 
some of the cities of Texas) have incorporated in their 

13 



THE INITIATIVE, REFERENDUM AND RECALL 

new commission charters some sort of provision for 
the initiative or referendum. 

As in the state constitutions, the city charter pro- 
visions relating to direct legislation are alike in prin- 
ciple and varying as to details. Speaking broadly, the 
voters of the city have the right, by presenting peti- 
tions bearing a prescribed number of signatures, to 
propose any municipal ordinance or other local meas- 
ure. The percentage of signatures required is, of 
course, higher than that demanded in state affairs: it 
ranges from fifteen to twenty-five per cent. 1 Such 
proposals go before the whole city electorate at the 
next regular polling, provided the date of such polling 
be not more than a few months away; otherwise 
special elections may be held. Similarly the charters 
usually provide that no ordinance or order of the 
municipal council (or commission) shall go into force 
for a certain number of days, during which interval 
petitions asking that the ordinance be referred to the 
voters may be presented. If such petitions bear the 
required number of signatures, the ordinance can go 
into effect only on acceptance at the polls ; if valid peti- 
tions be not presented within the interval, the ordinance 
goes into effect. 

Both in state and city governments the machinery 
of direct legislation has been frequently set in motion 
during the last half-dozen years'. In Oregon the sys- 

X A table showing the exact percentages in all commission-gov- 
erned cities may be found in E. S. Bradford's "Commission Govern- 
ment in American Cities" (New York, 1911), 223-233. 

14 



INTRODUCTORY 

tem has been put to an extensive and increasing use 
at every state election since its incorporation in the 
constitution ten years ago. At the election of 19 10 no 
fewer than thirty-two projects of legislation were sub- 
mitted to the voters of the state, 1 and there are indi- 
cations that the ballots of 191 2 will have also made 
free use of the system or quite enough, at any rate, to 
demonstrate that where provisions for direct legisla- 
tion go on the statute-book they are not at all likely 
to remain inactive. 

No question of present-day political discussion 
affords grounds for wider, yet thoroughly sincere, dif- 
ferences of opinion than the relative merits and de- 
fects of direct as contrasted with representative 
legislation. Men differ honestly, not only as to 
the soundness of the principles upon which the initia- 
tive and referendum are based, but also as to the 
immediate and ultimate effects of their actual use. 
One reason for this can be found, perhaps, in the fact 
that the propaganda for direct legislation embodies not 
only a policy but a protest, and upon the necessity 
for any protest of such violence against the existing 
system there is an added opportunity for divergence 
in opinion. Proposals for the establishment of the 
mandatory initiative and referendum have derived 
much of their impetus and support, not from a popu- 
lar conviction that they promise a wholly satisfactory 

1 These are printed in C. A. Beard and B. E. Schultz's "Docu- 
ments on the Initiative, Referendum and Recall" (New York, 1912), 
385-389. 

IS 



THE INITIATIVE, REFERENDUM AND RECALL 

method of lawmaking, but from a widespread impres- 
sion that only through these agencies can some present- 
day legislative abuses be eradicated. American public 
opinion has grown more vigorous, more active, and 
more intelligent during the last decade. At no time 
in our history, indeed, has it been more adequately 
informed upon great political, economic and social 
questions, for in no previous period have the agencies 
of popular information been so ample. Being in- 
formed, public opinion has become eager to assert 
itself in legislative policy, and it would doubtless be 
content to do this through the orthodox channels of 
representative government if this seemed wholly feas- 
ible. But a large section of the electorate has come 
to the conclusion that these channels do not afford 
adequate facilities for the assertion of popular 
sovereignty. Nor is this conviction confined to any 
loose-thinking element among the voters. When one 
of the most observant among contemporary stu- 
dents of American political currents can express the 
conclusion that " public opinion was never more help- 
less to obtain its purposes by ordinary and stated 
means," * it can scarcely be urged that the old ma- 
chinery of democracy is fulfilling its professed ends to 
the satisfaction of all. 

Popular distrust of the present system of law- 
making is undeniably widespread and deep. But it is 
not based upon the idea that the representatives of 

i See below p. 74. 
16 



INTRODUCTORY 

the people are incompetent to do their duty. Rather 
it arises from the notion that they are prevented from 
doing it. And these preventing influences, in the popu- 
lar mind, are various organized interests — political 
machines and economic corporations — whose wishes 
do not usually run parallel to those of the electorate. 
To be logical the protest ought to be directed against 
the practice of sending to the legislature and to the 
municipal councils men of insufficient integrity who 
allow themselves to be controlled by sinister influences. 
But public opinion is not inclined to be logical in the 
protests which it makes. Whatever the flaws of repre- 
sentative democracy, the people are loth to put the 
blame therefor upon their own shoulders. The voters 
will change the system, but not their own ways. 

Grounds for popular protest against the control 
of representative bodies by self-seeking interests there 
are, of course, in plenty. Conditions that have long 
existed and still exist in at least a dozen states and in 
scores of municipalities afford abundant proof that 
whether or not the voters get what is advisable for 
them to have in the matter of legislation, they certainly 
do not always get what the majority of them want. 
And under the representative system, as it has been 
administered in most parts of the country, it would be 
strange to find things otherwise. When representa- 
tives are nominated in party conventions dominated by 
political bosses and elected by a ballot which embodies 
every feature that ingenuity could devise for befog- 
ging the voter; when these representatives are set to 

17 



THE INITIATIVE, REFERENDUM AND RECALL 

perform their functions of legislation under a sys- 
tem which eliminates all possibility of firm leader- 
ship and presents every facility for shifting responsi- 
bilities, it is idle to expect that the statute-book will 
be a mirror of public opinion. 

Somewhat curiously, however, it is only within 
very recent years that any serious attempts have been 
made to clear the representative system of these im- 
pediments to its proper working by the introduction 
of such features as direct nominations, the short bal- 
lot, and improved methods of procedure in legislative 
bodies. For a long time remedial measures took lines 
which were not, and could not be productive of marked 
improvement. Popular distrust of representatives 
manifested itself first of all, for example, in the prac- 
tice of curbing legislative freedom. Whenever state 
constitutions were revised, new limitations upon legis- 
lative discretion were inserted until one could almost 
say that in some states the constitutional convention 
(with its work subject to popular ratification) has be- 
come the medium of all fundamental legislation, while 
the state legislature is relegated to the function of pro- 
viding for odds and ends during the years intervening 
between periodical revisions of the constitution. 1 
Whenever, through rise of new conditions, a state 
legislature develops a new field of discretionary action, 
the next constitutional convention is quite apt to put 
a hamper upon such legislative freedom by defining 

1 J. Q. Dealey, "General Tendencies in State Constitutions " in 
American Political Science Review, February, 1907, pp. 200-212. 

18 



INTRODUCTORY 

the principles upon which the new conditions shall be 
met. Some state constitutions prescribe that the legis- 
lature shall meet only in alternate years, and some 
place a limit upon the number of days it may continue 
in session — constitutional provisions which seem to 
take for granted that the activity of legislatures is a 
somewhat necessary evil that ought not to be borne 
beyond a certain point. None of these measures is in 
the direction of improving the calibre of legislators — 
none of them aims to facilitate the work of legisla- 
tures. All of them are based upon the strange notion 
that^ the work of a representative body can be improved 
by curtailing its freedom, and, pari passu, its responsi- 
bility. The most effective way to degrade any official 
chamber and to make service in it unworthy of sub- 
stantial men in the community is to take away its 
capacity for becoming a public nuisance if it chooses 
to be such. A body which can do no harm can, by 
the same token, do little good, and public opinion will 
not be long in discovering the fact. Constitutional 
hampers upon legislative discretion have availed, for 
the most part, only to lower the calibre of men elected 
to lawmaking bodies. 

Following abortive attempts to secure any marked 
improvement in the quality of legislation by reducing 
legislatures to the plane of ordinance-making bodies 
and by giving the real legislative power to periodic 
constitutional conventions, there have been efforts, 
rather half-hearted, however, to improve the methods 
under which representatives are selected. The direct 

19 



THE INITIATIVE, REFERENDUM AND RECALL 

primary laws adopted in a dozen or more of the states 
and applied to scores of cities during the last few 
years, the removal of party designations from the bal- 
lot, preferential voting, corrupt practices laws, the re- 
duction of the municipal council in size and the 
increase of its powers — all these are measures which 
aim directly at securing better representatives, and 
which, if given adequate opportunity, will almost cer- 
tainly accomplish much in that direction. The recent 
experience of states and municipalities seems to war- 
rant the hope that most of the existing political ail- 
ments can be eradicated by specific remedies directed 
straight against the local seat of trouble. But this 
process takes time and requires a patience which public 
opinion does not seem ready to exercise. The direct 
legislation propaganda is an evidence of popular impa- 
tience with the slow, but reasonably sure working of 
specific reforms. 

The first argument in favor of direct legislation 
rests, accordingly, upon the allegation that existing 
legislative methods and results are unsatisfactory to 
the majority of the electorate; that representatives do 
not properly represent; and that the reforms under- 
taken hitherto have not changed and are not likely to 
change that situation. But the sponsors of the initia- 
tive and referendum do not rest their whole case, or 
even a large part of it, upon this point. They claim 
for their proposals many positive merits which do not 
connect themselves directly with the faults of the exist- 
ing representative system. Emphasis is laid, for ex- 

20 



INTRODUCTORY 

ample, upon the educative value of direct legislation. 
By means of the initiative, a spirit of legislative 
enterprise is promoted among the voters; men are 
encouraged to formulate political ideas of their own 
and to press these upon public attention with the assur- 
ance that they shall have a fair hearing. If public 
welfare often suffers from public apathy; if the mass 
of the voters manifest little interest in the contents 
of the statute-book, this is due in large measure, it is 
claimed, to the feeling of electoral helplessness which 
in some states amounts to a popular conviction. In 
California, during the decade preceding the adoption 
of the direct legislation amendments to the constitu- 
tion, it would be a gross perversion of obvious facts to 
allege that the voters of the state got what they wanted 
in the way of legislation. They obtained, for the most 
part, what a great and influential railroad corporation 
was willing that they should have. In a state like 
Pennsylvania, or in a city like Chicago, at the present 
moment it would be idle to argue that the statute- 
book represents the embodiment of popular ideas in 
legislation. The voters of that state and that city 
have endeavored on many occasions to crystallize their 
wishes into legislative action; they have demonstrated 
that on many matters public sentiment is pronounced 
and readily ascertainable by legislators ; yet they have 
almost invariably found legislation unresponsive. To 
be really representative, a government must be re- 
sponsive to public opinion, and to be responsive, it 
must have the machinerv of close contact. Between 



THE INITIATIVE, REFERENDUM AND RECALL 

even a strong popular sentiment and the passage of a 
measure to enactment, there is, under what is termed 
representative government in many states and cities 
of the Union, a long and difficult route, well strewn 
with pitfalls. The growth in vigor of popular ideas 
upon matters of state or civic policy is stunted by the 
mere knowledge that this is so. Men develop ideas 
only when there is at least a fighting chance that these 
ideas may be borne to fruition, and the electorate is 
no more than the individual writ large. Political 
thought and discussion can be best stimulated, it is 
suggested, by popular knowledge that these lead 
straight to action. The way to get voters interested 
in measures is to ask for their opinion upon measures, 
not for their opinion upon men. The way to educate 
the voter upon matters of public policy is to submit 
measures to him in person and not to some one who 
holds his proxy. The educative value of the ordinary 
ballot has long since been demonstrated; and the 
friends of direct legislation now urge that this be en- 
hanced by making the ballot a more elaborate political 
catechism. John Stuart Mill once remarked that the 
" magic of property turns sand into gold." It may be 
that the magic of responsibility can turn popular list- 
lessness into public enthusiasm. At any rate the system 
of direct legislation freely promises, through its advo- 
cates, to make the voter realize' that he is a sovereign 
in fact as well as in name and to increase his serious 
interest in public affairs by giving him something 
more to decide than the party label of officeholders. 



INTRODUCTORY 

In keeping with this emphasis upon the educative 
value of the initiative and referendum is the provision 
made by most of the states and municipalities which 
have adopted these features, for distribution, either in 
whole or in part, at public expense, of printed informa- 
tion bearing- upon the different questions which go 
upon the ballot. These pamphlets, which are usually 
in the form of a symposium presenting the arguments 
advanced by the proponents and opposers of each 
proposition to be voted upon, are mailed to every citi- 
zen whose name is on the voters' list. He is expected 
to read his pamphlet before he goes to the polls and 
to form his own judgment as to the merits of each 
proposal. In addition to this, it has become customary 
for various organizations to show their interest in 
some of the items by holding discussions prior to an 
election, passing resolutions of advice to their own 
members, and even issuing literature telling the voters 
which questions upon the ballot ought, in the opinion 
of these organizations, to be answered in the affirma- 
tive and which in the negative. Through all these 
various channels information concerning mooted meas- 
ures is literally forced upon the attention of voters. It 
may be urged that, despite it all, a great many voters 
will remain uninformed and, through their lack of in- 
formation, will register unwise decisions at the polls. 
Yet it will scarcely be denied that the mass of the elec- 
torate is apt to be better informed upon public ques- 
tions when all this literature is cast amongst it than 
when it is confronted merely with candidates and given 

23 



THE INITIATIVE, REFERENDUM AND RECALL 

only such printed matter as bears on the qualifications 
of these men. There ought to be no doubt in the minds 
of those who have watched the workings of direct 
legislation during the past few years, that this sys- 
tem does promote popular discussions of public meas- 
ures. And all such discussions have their educative 
value. Whether they actually lodge sure information 
in the voter's mind, and whether he accordingly can 
hope to become as sane and judicious an agent in 
passing upon these measures as his elected representa- 
tive is likely to be — that is a matter upon which one 
cannot yet speak with any such decision. 

In the realm of local government the task of edu- 
cating the voter to a popular knowledge of the ques- 
tions laid before him can hardly be called insuperable 
The basis, indeed, of the New England town system 
of government is the principle that even matters of 
very minor importance shall be decided by referenda 
to the citizens, and taking the history of New England 
towns as a whole, it does not appear that the voters 
have shown themselves less capable in determining 
these things than a body of representatives would have 
been. Most of those towns are small, it is true, but 
others, like Brookline, Mass., are, in point of popula- 
tion, larger than half the so-termed " cities " of the 
United States, and it does not appear that town gov- 
ernment in any way loses its satisfactoriness as the 
towns grow in population. 

Among the objections urged against the system of 
direct legislation three or four stand out most promi- 

24 



INTRODUCTORY 

nently. One is the allegation that it runs contrary to 
the principle of representative government; that its 
adoption will deprive representatives of power and 
responsibility, and that the calibre of men in legislative 
office will deteriorate in consequence. This is an ob- 
jection which cannot be lightly brushed aside, for the 
institutional history of this country during the last 
fifty years is full of things which tend to afford it 
support. Indeed, if there be any principle which 
American political experience seems to establish, it is 
the one stated in a preceding paragraph, namely, 
that the surest way to impair the personnel of any 
representative body is to reduce its powers. The ex- 
pansion of constitutional limitations, with the conse- 
quent narrowing of legislative authority, has unques- 
tionably operated to reduce the dangers arising from 
the election of incapable legislators. When the choice 
of inferior representatives does not bring serious pen- 
alties upon the electorate, inferior representatives are 
apt to be chosen. Public vigilance is the price of effi- 
cient government only so long as the legislature holds 
broad and final powers. The decline in the calibre 
of American legislatures, both state and municipal, has 
gone hand in hand with the shearing of their legis- 
lative powers. And the process runs in a vicious 
circle. When a legislature or council shows itself not 
up to the mark in the integrity or efficiency of its work,, 
the usual remedy has been not to increase but to 
diminish its powers and responsibilities. With nar- 
rowed powers it attracts a less capable set of men 
3 25 



THE INITIATIVE, REFERENDUM AND RECALL 

and these exercise even their smaller responsibilities 
less satisfactory. So again the pruning knife comes 
forth, and with the same results. This, in a word, has 
been the history of city councils in most American 
cities, until in the end the municipal legislature in 
cities like New York has ceased to be a coordinate 
branch of municipal government, and has become little 
more than the arena for an ill-tempered and almost 
wholly uninfluential discussion of public affairs. In 
many cities it has been eliminated altogether by tele- 
scoping it with the executive. 

The policy of direct legislation proposes a more 
ruthless shearing. The elaboration of constitutional 
and charter limitations served to destroy the finality 
of legislative powers in many matters; direct legisla- 
tion would destroy this in all things. If this further 
mowing down of the final powers of representative 
bodies would not conduce to a further decline in the 
calibre of their personnel, then five or six decades of 
American political experience have taught us nothing. 
The sponsors of the direct legislation propaganda 
assure us that, under the new legislative regime, public 
attention will be focused upon measures rather than 
upon men, which seems to carry the implication that an 
unalloyed system of representative legislation pos- 
sesses the vice of concentrating too much public atten- 
tion upon the claims of rival candidates. That, how- 
ever, is least among the failings of representative 
democracy. Its shortcomings arise rather from a fail- 
ure of the voters to exercise adequate care in ascer- 

26 



INTRODUCTORY 

taining the qualifications of those who seek office and 
from a general disposition to place too much reliance 
upon those guarantees which a party label is supposed 
to carry. It may well be doubted whether an electo- 
rate which cannot be brought to discriminate with care 
as among candidates can be easily brought to exercise 
much discrimination as among measures. The voters 
like to associate public policies with personalities, and 
anything that tends to weaken the prominence of the 
latter is not unlikely to react in a lessened interest 
toward the former. From the assertion that resort to 
direct legislation on any broad scale is almost certain 
to lower the plane of popular representation and 
consequently to result in a poorer quality of repre- 
sentative legislation, there seems to be no getting 
away. Political experience supports it too strongly 
to leave ground for much hope that the result would 
be otherwise. 

But it is urged that the direct merits of the new 
system, in the way of positive legislation, far out- 
weigh this objection, even though it be given all the 
emphasis that may be put upon it. The real test of 
legislation in a democracy is its popularity. It matters 
not how patiently and carefully a statute may be 
framed by legislators; if it be not in spirit what a 
majority of the voters desire, it is not a good statute 
when judged by democratic standards. Now the chief 
deficiency of laws and ordinances made in the ortho- 
dox way has been, it is alleged, a failure to recognize 
popular demands. And this, again, has come about in 

27 



THE INITIATIVE, REFERENDUM AND RECALL 

part at least, because the men who have been elected to 
state legislatures and city councils have too frequently 
failed to realize the true function of a representative. 
If representative government means what its name 
implies, the real and indeed the only function of a 
representative, we are told, is to represent. In defiance 
of this doctrine, one naturally recalls the famous apol- 
ogy of Edmund Burke to the voters of his constituency 
more than a century ago, when this great parliamen- 
tarian urged that the true function of a representative 
is to do his constituents' political thinking for them. He 
maintained the interests of his people, Burke claimed, 
against their opinions. As a principle upon which to 
base a system of efficient government, there is much 
to be said in support of Burke's doctrine, but if every 
representative were to act on the maxim that his own 
judgment is a better guide of public interest than the 
plainly expressed opinions of those whom he repre- 
sents, government would be no longer representative 
or popular. That laws would be, under the influence 
of such conceptions of a representative's function, more 
uniform in spirit, more consistent with one another and 
more dispassionate in tone, there can be little doubt. 
But the relation of law to public opinion would be 
less intimate, and any marked hiatus between these 
two is inconsistent with the American theory of demo- 
cratic government. 

It has been urged, again, that the presumable readi- 
ness of voters to put their names upon initiative peti- 
tions without due scrutiny of the proposals contained 

28 



INTRODUCTORY 

in the latter will force upon the electorate the necessity 
of winnowing a few grains of wheat from the chaff 
which will be set before them at every election. And 
it is true that in those cities which have already adopted 
the initiative the new process of starting measures 
upon their march to a place upon the municipal stat- 
ute-book has not been used very sparingly. Every 
element in the community has its own particular legis- 
lative privilege in quest and is apt to overestimate the 
importance of such claims from the standpoint of the 
general interest. The gathering of signatures has ac- 
cordingly the momentum of an interested propaganda 
behind it, and if the percentage of necessary signa- 
tures be not set fairly high, the initiative is in danger 
of becoming a facile agency of hobby-riding at the 
expense and inconvenience of the public. It ought 
to be said, however, that the collection of any large 
number of signatures, under the restrictions commonly 
imposed by the direct legislation laws, is not such a 
simple and inexpensive undertaking as many imagine. 
If the proposal directly concerns the interests of any 
organized element of the community — the labor 
unions, the great business corporations, a political ma- 
chine, or a religious body — the required signatures for 
an effective petition are not ordinarily difficult to se- 
cure. These bodies have the machinery for name 
gathering at hand. But where the proposal directly 
touches the privileges and pockets of none of these, 
but merely the welfare of the everyday citizen who 
has no particular organization to champion his inter- 

29 



THE INITIATIVE, REFERENDUM AND RECALL 

ests, the quest for initiative signatures is likely to make 
heavier demands, in the way both of time and of 
money, than can be met without cooperation. The 
promotion of laws in the interest of the unaffiliated 
citizen is likely to become nobody's business. 

An interesting sidelight has been thrown upon this 
matter by the working of those provisions relating to 
nomination by petition which are contained in the 
present Boston charter. Candidates for election to 
the city council must be placed in nomination by peti- 
tions bearing the names of at least five thousand quali- 
fied voters — less than five per cent, of the total electo- 
rate. It was predicted, when the adoption of this 
charter provision was under discussion, that the re- 
quirement was too lenient and that it would be too 
easy for a man to get his name upon the ballot. Sub- 
sequent events have proved that where candidates have 
the support of a political machine the requirement is 
easily complied with. A nomination paper, passed 
around among city employees, can be filled in a day 
or two. Similarly it has been found that aspirants 
who are willing to hire workers can secure the required 
names at five or ten cents per head. But when a can- 
didate is able to command neither the backing of a 
political organization nor the funds necessary to pay 
for signatures, the prospect set before him is sufficient 
to deter all except the political' beachcomber who has 
nothing else to do. 

It is urged that the initiative will transfer to the 
unorganized and independent elements of the elector- 

30 



INTRODUCTORY 

ate the advantages now held almost everywhere by 
organized interests, both economic and political. But 
does American political experience warrant the hope 
that it will do anything of the kind? It is true that 
in the first flush of their newly-gained prerogatives the 
independent, unorganized electors, in some states and 
cities where direct legislation has been a while in 
vogue, have pounded through legislation hostile to the 
special interests. But these spasms of popular inde- 
pendence have not been uncommon under the repre- 
sentative system of lawmaking, neither have they been 
wholly ineffective. The trouble with unorganized ac- 
tion* lies in the fact that it is inevitably spasmodic and 
intermittent. The sponsors of the mandatory initia- 
tive have asked us to believe that, by rendering its 
course of action more direct, an unorganized majority 
actuated by unselfish motives can permanently thwart 
the will of a well-organized minority of the electorate 
acting with all the zeal and resources that self-seeking 
aims can supply. If our municipal history teaches us 
anything, it is that changes in the framework of gov- 
ernment, in the electoral system, and in the methods 
of ordinance-making do not alone suffice to block the 
pathway of any measure which can command organ- 
ized support and ample funds. 

Objections of an allied sort are often raised against 
the referendum as an agency of lawmaking. The 
political history of Switzerland, where the popular 
referendum has long been in operation under circum- 
stances favorable to its success, shows that the people 

31 



THE INITIATIVE, REFERENDUM AND RECALL 

in general grow tired of their legislative duties after 
the novelty of their experience has worn off, and that 
a decision which passes for the will of a majority of 
the voters often represents in reality the judgment of 
that minority among them which happens to be im- 
mediately interested in the question. In Berne, for 
example, a majority of the registered voters have 
recorded themselves on only nine out of sixty-eight 
questions submitted, and in only a very few instances 
has any question received an affirmative vote equal 
to a majority of the registered voters. Even in the 
case of national referenda scarcely more than one-half 
of all the registered electors pass upon the questions 
submitted to them at the polls. The more one studies 
the statistics of Swiss referenda, the more strongly is 
one forced to the conclusion that decisions which are 
popular in name are not necessarily popular in fact. 
In Switzerland, as in all other democracies, the laws 
represent the will, not of the whole electorate, but of 
that part of it which, impelled either by public or pri- 
vate motives, takes an active interest in affairs of state. 
In one of the cantons a serious attempt was made, 
some years ago, to ameliorate the force of this objec- 
tion to the referendum by imposing a fine upon every 
voter who failed to appear at the polls. The polled 
vote increased as a result ; but the real aim of the law 
was not achieved, for many of the voters who came to 
the polls under the spur of this compulsion rendered 
perfunctory conformance by dropping blank ballots 
into the box. 



INTRODUCTORY 

In America the showing upon this point has been 
somewhat better. From 1780 to 191 1 the voters of 
Massachusetts passed upon sixty questions, of which 
they answered forty-one in the affirmative. All were 
submitted at regular elections. In only a few cases 
has the total vote on these referenda approached the 
entire vote polled for candidates, and in ten cases the 
number of votes recorded upon the measure was less 
than one-fifth of the total vote cast. In Boston, dur- 
ing the last twenty years, there have been thirty-three 
questions of local interest submitted to the voters. 
Twenty of these (one each year) dealt with the ques- 
tion of liquor licenses. On these referenda the aver- 
age vote was 63.3 per cent, of the entire registered 
vote, an excellent record as indicative of interest in 
this question. On the other questions the average 
was only 59.3 per cent. It is interesting to notice, 
moreover, that the largest percentage was recorded 
upon questions which prominently involved some spe- 
cial interest. The request of a street railway corpora- 
tion to put its tracks upon a certain street, the demand 
of city laborers for fewer hours of labor, the attempt 
of certain sections of the city to eliminate the liquor 
trade from their neighborhood — these were the issues 
which got the most attention, and they are all matters 
affecting organized interests and not things that 
touched the position or the purse of the whole body of 
citizens. On the other hand, matters which did vitally 
affect the interests of every citizen in the community 
— such as the question of adopting what virtually con- 

33 



THE INITIATIVE, REFERENDUM AND RECALL 

stituted a new charter for Boston — elicited a much 
less comprehensive expression of opinion. 1 

It is to be borne in mind, moreover, that our use 
of the referendum in the United States has been, up 
to the present time, under favorable conditions. Ques- 
tions have been submitted, for the most part, at the 
regular elections when most voters come to the polls 
anyway. As a rule, moreover, only a few questions 
have hitherto been put upon the ballot at any one 
time. But the use of the referendum on a scale so 
broad as is frequently proposed would greatly enhance 
the difficulty of getting a reliable expression of the 
public will. The submission of questions at special 
elections held for the purpose, particularly if these 
special elections should be held frequently, would cer- 
tainly mitigate against the polling of a large vote. It 
may well be doubted, in the light of such experience 
as we have had, whether more than fifty per cent, of 
the registered voters would, on the average, appear at 
these special elections. We should have, in such event, 
government by half the people for the whole people, 
which is scarcely our orthodox definition of democ- 
racy. The submission of many questions, moreover, 
means inevitably that none will get very much scrutiny 
or study. The average voter gives just about so much 
time and thought to political questions on the eve of 



^or further details see the paper by Dr. E. M. HartweU on 
"Referenda in Massachusetts" in Proceedings of the National Mu- 
nicipal League, 1909, 334~353- 

34 



INTRODUCTORY 

an election. If thirty questions be submitted to him 
instead of three, they are likely to have, in sum, no 
more of his thought or consideration. Two or three 
questions he may and sometimes does inquire about 
and form his own opinion upon. But for guidance 
upon a score or more of matters, if these are to come 
upon his ballot, he will be inclined to take the advice 
of some party, organization or interest with which he 
may be affiliated. In those western states and cities 
where, under newly adopted systems of direct legisla- 
tion the ballot has been loaded with dozens of ques- 
tions often of minor importance, that is exactly what 
has happened. The real voting is done, not by the 
voter, but by the political committee, the taxpayers' 
league, the labor union, or some other organization 
whose advice on political matters he regards as coin- 
cident with his own interest and whose printed pam- 
phlet of instructions he takes with him to the polls. 
In one western city the politicians provided their fol- 
lowers with a sheet of limp cardboard the exact size 
of the ballot. Holes had been cut in this at appro- 
priate places ; the voter was instructed to lay the card- 
board on his ballot, and, by marking his cross in each 
hole, he voted on all the referenda just as the poli- 
ticians desired him to vote. Those who hope, there- 
fore, that the system of direct legislation will cause 
every voter to inform himself concerning the merits 
of each proposed measure, or that it will break the 
power of political machines by making the voters do 
something which the politicians cannot influence them 

35 



THE INITIATIVE, REFERENDUM AND RECALL 

in doing, have as usual underestimated the ingenuity 
of the latter. 

It may be suggested, moreover, that not only does 
the referendum fail in many cases to arouse that de- 
gree of public interest and discussion which is neces- 
sary to a large vote, but that large numbers of those 
who do vote upon submitted measures are guided by 
nothing more substantial than prejudice or caprice. 
It is well known to politicians, for example, that other 
things being equal, the affirmative side of any ques- 
tion on the ballot has a great advantage. Only a few 
months ago there was a local illustration of this fea- 
ture in electoral psychology when the opponents of a 
proposal which went before the voters of a Massachu- 
setts city had the question so framed that they would 
get that advantage of being in the affirmative. 1 The 
affirmative seems, in fact, to have a bonus equivalent 
to that of the candidate whose name comes first on 
the ballot. Just how great such advantages are, can- 
not be determined by any safe method of computation ; 
but if one accepts the opinions of active political 
workers, they are sufficient in many cases to turn the 
scale. 

Other electoral tendencies, more or less capricious, 
are disclosed by a study of the action of the electorate 
upon questions that have been submitted to them. It 

i As originally drawn the question was as to whether a certain 
public undertaking should be defrayed by the issue of bonds "out- 
side the city's debt limit." The wording was changed to "within 
the city y s debt limit." 

36 



INTRODUCTORY 

is clear, for example, that the average voter carries 
with him into the polling booth a considerable preju- 
dice against corporate interests, and is prone to record 
his voice against anything that looks like a concession 
to them. When city charters provide, therefore, that 
no franchise extensions or other rights may be granted 
to public service corporations except with the approval 
of a majority of the voters at the polls, a serious obsta- 
cle is placed in the way of granting such privileges, 
however much it may be in the city's interest to do 
so. The cry against privilege in any of its forms 
is easy to raise, and when raised always has effective- 
ness, as do the various race and religious cries which 
mischief-makers raise from time to time. Doubtless 
this anti-corporation prejudice among the voters is, to 
a considerable extent, not without reason: corporate 
interests, by their reckless disregard of public policy 
and popular opinion, have often brought it upon them- 
selves. But prejudice exists, and government by 
prejudice, warranted or unwarranted, is not safe gov- 
ernment. When the public mind is inflamed against 
an offender, though justifiably so, no one with a clear 
sense of justice would urge that the offender should 
have his right to life, liberty or property adjudged 
by a jury which reflects the prejudice of the com- 
munity rather than by a body of men qualified to act 
dispassionately. When popular passions are aroused, 
it is not easy to get a jury which will deal fairly 
on the merits of an issue, nor yet a legislature 
or council which will do the same. But all three of 

37 



THE INITIATIVE, REFERENDUM AND RECALL 

those bodies will probably manifest a greater inclina- 
tion to fairness than the whole electorate from which 
their members are drawn. Where vested interests are 
concerned, measures that are legislative in form are 
very often adjudicative in effect. To hinge their ac- 
ceptance or rejection upon the issue of an election is 
accordingly to establish, in many cases, a system of 
administrative adjudication by popular caprice. 

On the other hand, voters show a partiality toward 
certain interests and principles which may not be, and 
frequently are not, in accord with the general interest. 
They are unduly lenient, as a rule, toward the claims 
of all who hold places on the city payroll. For secur- 
ing higher pay, fewer hours and favorable terms of 
service, the city employee can scarcely find a more 
useful expedient than the referendum. The public 
feels kindly toward the man who works for the mu- 
nicipality at a small daily wage; the older and less 
competent he is, the more sympathetic it seems to feel. 
When the employees ask for something they are apt 
to get it without much scrutiny from the mass of the 
voters. That is why policemen, firemen and others 
who go to the legislature for measures in their own 
interest are always willing to have these passed with 
a proviso for a local referendum attached. Experience 
seems to show that legislatures comply much more 
readily with requests for permissive than for manda- 
tory legislation, since they are naturally inclined to 
feel that legislation of the former sort puts no final 
responsibility upon them. So also the voters show a 

38 



INTRODUCTORY 

pronounced partiality to measures which propose to 
pay for public improvements out of the proceeds of 
loans rather than from current taxes. It is but natural 
that men should desire to have present conveniences 
at the expense of future generations; hence when a 
voter is asked whether he will pay for a costly public 
improvement or let his grandchildren pay for it, his 
answer is not difficult to forecast. For a time it was 
thought that since municipal councils are inclined to 
be prodigal of the city's credit, the necessity of sub- 
mitting proposed loans to the voters would afford a 
salutary check. As such it has proved, however, of 
little or no service. On the contrary, it has rather 
favored undue borrowing by reducing the council's 
sense of responsibility for its share in the matter. 

Other lines along which the electorate is apt, as 
experience shows, to be guided by its prejudices or 
partialities might be indicated; but enough has been 
said to suggest that the expressed wish of the people 
does not necessarily represent their deliberate judg- 
ment. When voters are called upon with frequency 
and are asked to express themselves upon all sorts 
of matters the consideration which they give to each 
question must be of the most superficial sort and, being 
superficial, erratic. Public sentiment is proverbially 
fickle as to men ; it is not likely to be any less so as to 
measures. As men have gone into high office on the 
crest of a wave and have been dropped out on its 
subsidence, so measures and policies of all sorts catch 
the popular fancy for one season and are discarded 

39 



THE INITIATIVE, REFERENDUM AND RECALL 

the next. It is scarcely to be expected that an in- 
creased participation of the electorate in the normal 
work of lawmaking will give public sentiment any 
greater stability; on the contrary, the statute-book 
would in all probability reflect to an even greater ex- 
tent than now the fleeting opinions of people whose 
political ideals are seldom very firmly anchored. All 
this is reinforced by the fact that the voters, upon 
questions set before them, must record categorical an- 
swers. They must either accept or reject a submitted 
measure. There is no room for compromise. Yet 
compromise has played a large part in the making of 
laws under the representative system. Without it 
progressive legislation would often have proved im- 
possible. To ask voters for an unqualified yea or nay 
is to disregard the fact that many of them do not hold 
unqualified opinions and cannot fairly express their 
views in categorical terms. 

An objection to direct legislation, well stated in a 
later chapter, is based upon the lack of harmony 
between that system and the traditional American 
distinction between constitutional and ordinary laws. 
Constitutions, and particularly those clauses in consti- 
tutions which make up a bill of rights, have been 
regarded in America as bulwarks of personal liberty. 
A certain sanctity has attached to these organic laws 
because they have been adopted in a particularly 
formal way which has included popular approval at 
the polls. Ordinary laws, on the other hand, have 
been the much less formal work of legislatures. But 

40 



INTRODUCTORY 

with a broad use of direct legislation this distinction 
would entirely disappear. Constitutions and ordinary 
laws would be made and unmade by the same pro- 
cedure; the people would initiate both by their peti- 
tions and adopt both by their votes. There would 
be no more security for personal and property rights 
in one than in the other. Of course it is not at all 
certain that this outcome would be very undesirable 
in America. In England there has never been any 
distinction between constitutional and ordinary laws, 
yet the liberty of the individual has not suffered 
serious impairment on that account. It may be sug- 
gested, moreover, that constitutional limitations de- 
signed to guard private rights have in America often 
overreached themselves and by so doing have offset 
much of the merit they possess. The provision which 
forbids the deprivation of property without " due 
process of law " enunciates a wholesome canon of 
government; but it has too often been pressed into 
service as a means of thwarting some much-needed 
social and economic reforms. Yet whether the objec- 
tion thereto be valid or not, it remains true that a gen- 
eral use of the initiative and referendum would sweep 
away a basic principle in the American legal system. 
In weighing the various merits and faults of the 
initiative and referendum as set forth in the foregoing 
pages much depends upon an individual's point of 
view. Men hold widely divergent opinions, for ex- 
ample, concerning the degree to which present insti- 
tutions and methods have failed, in the United States, 
4 41 



THE INITIATIVE, REFERENDUM AND RECALL 

to measure up to reasonable expectations. Yet each 
man's attitude upon that question determines the spirit 
in which he approaches the new proposals. Much de- 
pends, moreover, upon our individual notions concern- 
ing what the populace is apt to do under different 
circumstances and these notions are not usually built 
upon sure information. The psychology of the crowd, 
despite all that has been written on that subject by a 
brilliant French author, is even yet a terra incognita 
to students of political science. It is a fact, however, 
that those who best know the political propensities 
and caprices of the voters are the least ready to turn 
over to them the decision of every-day questions. 
Whether the electorate, with due education and prac- 
tice,' can do better than past experience has led us to 
expect, is something which the next few years will 
probably disclose. 

The Recall 

Unlike the initiative and referendum, the recall is 
not an agency of legislation but of administration. It 
is the power to remove, before the end of his term, any 
official elected by the voters. Although existing for 
a long while in some Swiss cantons, 1 it made its first 
American appearance under the title of the " impera- 
tive mandate " in the Populist propaganda of two 
decades ago, and was first given practical recognition 
in the Los Angeles charter of 1903. 2 Since that time 

* For example, in Berne, Argau, and Schaffhausen, 
s Laws of California, 1903, pp. 574-575. 

42 



INTRODUCTORY 

it has found its way into the constitutions and general 
laws of several states, notably those of Oregon, Iowa, 
South Dakota, Washington, Oklahoma and Califor- 
nia. It has also been provided for in the special char- 
ters of more than a hundred cities, most of them 
municipalities which have adopted the commission 
type of government. 

In all the cities which have adopted the recall, with 
the exception of Boston, the provisions relating to it 
are substantially the same. Ordinarily its operation 
applies only to elective officers ; but in one or two casei 
it extends to appointive officials as well. The move- 
ment to recall an officeholder before the expiry of his 
term is invariably begun by a petition which sets forth 
the reasons for the proposal. This petition, when it 
has received the signatures of a stated percentage of 
the qualified voters, is presented to some designated 
municipal authority. 1 The petition is duly examined 
by the appropriate officer ; the signatures are verified ; 
and if the requirements are found to have been com- 
plied with, a recall or removal election is ordered, 
usually by the city council. In some cities it is per- 
missible, in case the number of signatures is not suffi- 
cient, to file additional names in a supplementary 
petition. And although there have been no specific 

1 This stated percentage ranges ordinarily from fifteen per cent. 
to twenty-five per cent. ; but in a few cities it is higher. Sometimes 
it is a percentage of the registered vote; in other cases a percentage 
of the vote cast at the last local election. The designated officer is 
usually the city clerk. 

43 



THE INITIATIVE, REFERENDUM AND RECALL 

provisions in city charters covering the point, the 
courts decided, in a recent Seattle case, that voters 
whose names appeared upon a petition for the recall 
of an officer might withdraw their names at any time 
prior to the date upon which the petition was finally 
certified as sufficient. 1 

When a valid petition has been transmitted to it, 
the city council or other competent authority fixes a 
date for the removal election, which must be within 
the period fixed by law. Usually it is provided that the 
officer whose removal is sought shall have his name 
placed upon the ballot at this election unless he re- 
quests otherwise. Other candidates for the office may 
be placed in nomination by the usual methods. The 
recall election is conducted, so far as polling places 
and the other machinery of voting are concerned, like 
any regular election. Unless the incumbent receives 
the highest number of votes among the candidates 
offering themselves, he is recalled; that is, he leaves 
office and his place is taken by that candidate who 
did receive the largest number of votes. Ordinarily 
this successor fills out only the unexpired term. It is 
frequently provided, in order to prevent abuses of the 
recall procedure, that no removal petition may be filed 
until after an officer has been at least six months in 
his post and that thereafter a petition may not be filed 
more than once during his term of office. The con- 
stitutionality of the recall has invariably been upheld 

* See below, p. 331. 
44 



INTRODUCTORY 

by the courts. Following its adoption in city charters 
the recall has gained recognition in the constitutions 
of Oregon and California, in the latter of which it 
is applicable not only to the executive and legislative 
departments of government but to the judiciary as 
well. 

Since its first adoption by an American city eight 
years ago the recall has been put into operation a 
number of times, notably in Los Angeles and in 
Seattle. In the former city a member of the city 
council was removed from office in 1904 and in 1906 
a movement to recall the mayor was forestalled by the 
latter's resignation. Seattle in 1910 ousted its mayor 
after a violent contest and the friends of the new in- 
cumbent have since been kept employed in repelling 
persistent efforts to dislodge him in turn. In several 
other cities the expedient has been used, sometimes 
achieving its end and sometimes failing to do so. As 
yet there has been no instance of the recall of a state 
officer under the provisions which have been placed 
in state constitutions within the last four years. 

In the amended Boston charter of 1909 a modified 
system of recall was established in connection with 
the mayoralty. In providing for a four-year mayoral 
term the framers of those amendments deemed it ad- 
visable to entrust to the voters the power of termi- 
nating a mayor's tenure at the end of his second year 
in office. It happens that the state elections in Massa- 
chusetts take place in November and that the Boston 
municipal elections are held in January following. At 

45 



THE INITIATIVE, REFERENDUM AND RECALL 

the state elections, accordingly, the voters are asked 
(and this without the filing of any petition on their 
part) whether they desire an election for the post of 
mayor at the forthcoming January polling. If a ma- 
jority of the registered voters pronounce in the affirm- 
ative then the incumbent of the mayoralty vacates his 
office and a new election for a four-year term is held. 
The question goes on the state ballot once every four 
years, that is, whenever a mayor's term is halfway 
run. 1 

The chief argument in favor of the recall, as ad- 
vanced by friends of the expedient, is its efficacy as 
an agent of unremitting popular control over men in 
public office. It is a perpetual reminder of preelection 
promises. It compels each officeholder to view his 
every public act in the light of what the voters will 
think of it. It is an application, in a wider sense, of 
that principle of ministerial responsibility which is a 
feature of English government and which enables the 
course of public policy to be altered at any moment 
by the recall of a cabinet at the hands of the House 
of Commons. It assumes that the relation of the 
voters to an elective officer is that of principal and 
agent — that the agent's power of attorney may be re- 
voked at any time. It is, accordingly, a means of 

1 The question appeared on the ballot in November, 191 1, but no 
serious effort was made to influence the popular verdict either way. 
As the total registered vote of Boston is about 1 10,000 it would have 
taken over 55,000 affirmative votes to recall the mayor. The result 
was affirmative 37,262, negative 32,501. 

46 



INTRODUCTORY 

keeping all officials responsible and responsive to pub- 
lic opinion. 

That the possibility of recalling officers is likely to 
achieve some of these things is scarcely to be denied. 
The deference of an office-seeker to public sentiment 
is proverbial; and with a provision for his recall on 
the statute-book the official is likely to be kept per- 
petually in that frame of mind. There is little question 
concerning the spur to official responsiveness which 
the recall provides. The only question — and an im- 
portant question it is — concerns the effect which it 
will have upon an officer's judgment and hence upon 
his efficiency. Where the duty of an official is solely 
that of reflecting public sentiment — and that seems to 
be the only function of councillors elected from wards 
to large municipal bodies — the sponsors of the recall 
provision are able to make their strongest case. Large 
city councils and the ward system of election have as 
their only prop the strong popular feeling that all 
parts of the city and all elements of its population 
ought to be represented in the city government and 
particularly in that branch of it which governs public 
expenditure. One may defensibly take issue with this 
proposition; but as long as it is given recognition as 
a working principle of city government, as it still is 
in most cities of the country, it will scarcely be gain- 
said that those whose chief function is to reflect 
varieties of local sentiment should be made to do this 
in the most thorough way. And the recall provision 
is doubtless a useful agency in that direction. 

47 



THE INITIATIVE, REFERENDUM AND RECALL 

But there are many city officers upon whom is 
laid not only the task of reflecting local opinion, but 
something- more. In its administrative departments 
the city requires men who will combine a responsive 
attitude with some executive skill and judgment. The 
emphasis, indeed, ought to go upon the latter qualities. 
The recall provision, however, puts the whole emphasis 
upon the former. It may be urged, perhaps, that there 
is really no difference between these two — that an offi- 
cial who shows skill and judgment in the interests of 
the city is responding to the wishes of its citizens. It 
does not take much political experience to teach one, 
however, that the interests of the municipality as these 
clearly appear to a competent administrative officer, 
and the wishes of the citizens as they are apt to ex- 
press them at the polls, come far from being always 
the same thing. The case for the recall provision in 
relation to administrative officials is correspondingly 
weakened. With respect to judicial officers it is weak- 
est of all unless we are prepared to accept the revo- 
lutionary doctrine that the duty of a judge is that of 
a supplementary lawmaker. 

A point commonly urged in favor of the recall 
is that it permits the lengthening of official terms 
without thereby risking the establishment of a 
bureaucracy. Short terms, particularly for adminis- 
trative officers, have been a vice of local government. 
They form one of the chief reasons why city adminis- 
tration in the United States has failed to develop any 
sound traditions of efficiency. The only ground upon 

48 



INTRODUCTORY 

which one can pretend to justify the practice of elect- 
ing comptrollers, or street commissioners, or even 
mayors, for terms of one or two years is the desir- 
ability of holding these officials directly accountable 
to the electorate. If the recall provisions, by afford- 
ing a potential means of ousting an officer who proves 
unsatisfactory, can promote the practice of leaving in 
office for long terms those who prove themselves com- 
petent, it will have rendered a considerable service to 
the cause of good municipal management. The extent 
of this service must depend, however, upon the fre- 
quency with which the voters bring the recall machin- 
ery into operation and the motives which actuate them 
in doing so. If political or capricious motives dom- 
inate their action and if men are accordingly removed 
from office, not because they are inefficient but because 
they are politically unpopular, the service rendered by 
the recall machinery will be worse than worthless. We 
should then have no more than long terms in name 
and short terms in fact. One trouble with the short 
term is that it forces an officer to waste much of his 
time and energy in the task of maintaining his political 
fences; with the possibility of a recall election con- 
stantly on the horizon this trouble would not be elim- 
inated by the merely formal lengthening of an offi- 
cial's term. 

It was from this angle that the framers of Boston's 
amended charter approached the proposal to incor- 
porate the recall provision in that enactment. Their 
decision was that the mayor's term should be length- 

49 



THE INITIATIVE, REFERENDUM AND RECALL 

ened from two to four years; but that he should be 
removable by the voters at the end of two years. 
They provided, therefore, a recall arrangement which 
can be brought into operation at a stated point in the 
mayor's term, and not at any point as is commonly 
permitted in other cities. They stipulated, moreover, 
that a majority of the registered vote and not a mere 
plurality of polled votes should be necessary to effect 
the mayor's removal. In other words, the Boston char- 
ter provides a system whereby the voters express their 
opinion, when his term is half completed, upon the 
mayor's record in office and not upon his qualifica- 
tions as compared with those of some other candidate 
or candidates whose names appear upon their ballot. 
If the pronouncement by the voters is decisively 
against the mayor — that is, if a majority of the regis- 
tered voters declare against his continuance in office 
— the decision is effective. In brief, the Boston idea 
is that a mayor, when elected for a four-year term, 
should be allowed to finish it out unless the public in- 
terest clearly demands his removal. 

The plan of popular election, as a means of getting 
competent men for municipal administrative posts, has 
never been crowned with much success either in Amer- 
ica or elsewhere. Administrative skill is not to be 
had, apparently, by asking those who profess it to 
come forward as candidates for election. All this is 
so well recognized that the practice of seeking admin- 
istrative officials by popular election might have been 
wholly abandoned by this time were it not for objec- 

50 



INTRODUCTORY 

tions, which seem to be well rooted in the public mind, 
against the only other method, namely, executive ap- 
pointment. Making offices appointive opens the way 
to efficiency ; but when men are appointed to office for 
long terms they tend to forget that the public is a 
fastidious master. The recall, it is urged, can be used 
to secure the advantages of both these methods — elec- 
tion and appointment — without the shortcomings of 
either. If men be appointed to office for long terms 
but allowed to hold office subject to recall should oc- 
casion arise, the possibility of reconciling efficiency 
with ^ accountability comes into view. The right men 
can be appointed, and after appointment, these can be 
held to the proper attitude. 

The foregoing assumes, however, that the power 
to recall an officer will be used sparingly and for good 
reason only. Otherwise it would be no more than an 
effective instrument of intimidation and blackmail. 
Nothing indeed can be predicted with certainty con- 
cerning the merits and faults of the recall in operation 
until after it has had a trial over a considerable period 
and under varying degrees of political stress. If it 
can develop a good tradition, it may prove a highly 
useful addition to our machinery of local government. 
At its best it has great potentialities for good. But 
at its worst the recall contains endless possibilities of 
political demoralization and harm. 



CHAPTER II 

NATIONALISM AND POPULAR RULE 1 

In Mr. Herbert Croly's " Promise of American 
Life," 2 the most profound and illuminating study of 
our national conditions which has appeared for many 
years, especial emphasis is laid on the assertion that 
the whole point of our governmental experiment lies 
in the fact that it is a genuine effort to achieve true 
democracy — both political and industrial. The exist- 
ence of this nation has no real significance, from the 
standpoint of humanity at large, unless it means the 
rule of the people, and the achievement of a greater 
measure of widely diffused popular well-being than 
has ever before obtained on a like scale. Unless this 
is in very truth a government of, by, and for the 
people, then both historically and in world interest 
our national existence loses most of its point. Nom- 
inal republics with a high aggregate of industrial pros- 
perity, and governed normally by rich traders and 
manufacturers in their own real or fancied interest, 

i This chapter by Colonel Theodore Roosevelt is reprinted by 
permission from The Outlook of January 21, 191 1. 

2 New York, The Macmillan Co., 1909. 

52 



NATIONALISM AND POPULAR RULE 

but occasionally by violent and foolish mobs, have 
existed in many previous ages. There is little to be 
gained by repeating on a bigger scale in the Western 
Hemisphere the careers of Tyre and Carthage on the 
shores of the Mediterranean. 

If there is any worse form of government than 
that of a plutocracy, it is one which oscillates between 
control by a plutocracy and control by a mob. It 
ought not to be necessary to point out that popular 
rule is the antithesis of mob rule; just as the fact that 
the nation was in arms during the Civil War meant 
that there was no room in the country for armed 
mobs. Popular rule means not that the richest man 
in the country is given less than his right to a share 
in the work of guiding the government; on the con- 
trary, it means that he is guaranteed just as much 
right as any one else, but no more — in other words, 
that each man will have his full share as a citizen, 
and only just so much more as his abilities entitle him 
to by enabling him to render to his fellow-citizens 
services more important than the average man can 
render. On the other hand, the surest way to bring 
about mob rule is to have a government based on 
privilege, the kind of government desired not only by 
the beneficiaries of privilege, but by many honest re- 
actionaries of dim vision ; for the exasperation caused 
by such a government is sure in the end to produce a 
violent reaction and accompanying excesses. The 
Progressives, in fighting for sane and steady progress, 
are doing all they can to safeguard the country against 

53 



THE INITIATIVE, REFERENDUM AND RECALL 

this kind of unhealthy oscillation, of government by 
convulsion. 

A number of Progressive conventions have re- 
cently enunciated the following among other principles 
as necessary to popular government : 

Drastic laws to prevent the corrupt use of money 
in politics. 

Election of United States senators by direct vote. 

Direct primaries for the nomination of elective 
officials. 

Direct election of delegates to national conven- 
tions, the voter to express his choice for president on 
the ballot for delegate. 

The introduction of the initiative, referendum and 
recall. 

In Oregon most of these principles are already 
law. The recent Republican state platform of Wis- 
consin has declared for all of these principles; and 
this declaration is entitled to very serious considera- 
tion, for Wisconsin has taken a leading position in 
Progressive legislation and has to her credit a note- 
worthy record of laws for social, political and indus- 
trial betterment, which laws have been proved in 
actual practice and have worked well. 

Most Western Progressives, and many Eastern 
Progressives (including the present writer), will as- 
sent to these five propositions, at least in principle. 
I do not suppose that there can be any dissent from 
the need of passing thoroughgoing acts to prevent 
corrupt practices. The movement for direct primaries 

54 



NATIONALISM AND POPULAR RULE 

is spreading fast. Whether it shall apply to all elec- 
tive officials or to certain categories of them is a mat- 
ter which must be decided by the actual experience of 
each state when the working of the scheme is tested 
in practice. There is a constantly growing feeling 
also in favor of the election of United States senators 
by direct popular vote. On this point, as indeed on 
most of these points, there is room for honest diver- 
gence of opinion, but I believe that the weight of 
conviction is on the side of those who would elect 
the senators by popular vote, and that the general 
feeling is inclining this way. The arguments made 
against such method of election are practically the 
same as the arguments originally made against the 
election of president by popular vote ; and the electoral 
college was designed on precisely the same theory in 
accord with which it was supposed that the legislature 
rather than the people should be trusted to choose 
the best type of senator. Such change in senatorial 
elections would no more alter the fundamental prin- 
ciples of our government than they were altered by 
the change in presidential elections. At present, al- 
though the form of an electoral college is preserved, 
the vote for president is really a direct popular vote; 
and this absolute reversal in practice of the theory of 
the constitution as regards the choice of the most im- 
portant public officer in the land offers a curious com- 
mentary on the attitude of those who declaim against 
all change by practice in the construction of the letter 
of a written constitution. Again, and for the same 

55 



THE INITIATIVE, REFERENDUM AND RECALL 

reason, it seems to me an admirable plan that there 
should be a direct election of delegates to national 
conventions, with opportunity for the voter to express 
his choice for president and vice-president; although, 
of course, such latitude of action must be left to the 
delegate as to permit his exercising his own judgment 
if his first or second choice proves impossible. This 
is merely slightly to alter the present-day practice 
when delegates are instructed by state and district 
conventions to vote for a given candidate. 

The proposition that will excite most misgiving 
and antagonism is that relating to the initiative, refer- 
endum and recall. As regards the recall, it is some- 
times very useful, but it contains undoubted possibili- 
ties of mischief, and of course it is least necessary in 
the case of short-term elective officers. There is, how- 
ever, unquestionably a very real argument to be made 
for it as regards officers elected or appointed for life. 
In the United States government practically the only 
body to whom this applies is the judiciary, and I shall 
accordingly treat the matter when I come to treat of 
nationalism and the judiciary. 

There remain the initiative and referendum. As 
regards both of these, I think that the anticipations of 
their adherents and the fears of their opponents are 
equally exaggerated. The value of each depends 
mainly upon the way it is applied and upon the extent 
and complexity of the governmental unit to which it 
is applied. Every one is agreed that there must be a 
popular referendum on such a fundamental matter as 

56 



NATIONALISM AND POPULAR RULE 

a constitutional change, and in New York State we 
already have what is really a referendum on various 
other propositions by which the state or one of its 
local subdivisions passes upon the propriety of action 
which implies the spending of money, permission to 
establish a trolley line system or something of the 
kind. Moreover, where popular interest is sufficiently 
keen, as it has been in the case of certain amendments 
to the national constitution at various times in the 
past, we see what is practically the initiative under 
another name. I believe that it would be a good thing 
to have the principle of the initiative and the referen- 
dum applied in most of our states, always provided 
that it be so safeguarded as to prevent its being used 
either wantonly or in a spirit of levity. In other 
words, if the legislature fails to act one way or the 
other on some bill as to which there is a genuine 
popular demand, then there should unquestionably be 
power in the people through the initiative to compel 
such action. Similarly, on any bill important enough 
to arouse genuine public interest there should be power 
for the people to insist upon the bill being referred to 
popular vote, so that the constituents may authorita- 
tively determine whether or not their representatives 
have misrepresented them. But if it is rendered too 
easy to invoke either process, the result can be only 
mischievous. The same considerations which are more 
and more tending to make thoughtful people believe 
that genuine popular control is best exercised through 
the short ballot have weight here also. There are 
5 .57 



THE INITIATIVE, REFERENDUM AND RECALL 

plenty of cases in which, on a given issue of sufficient 
importance, it is better that the people should decide 
for themselves rather than trust the decision to a body 
of representatives — and our present-day acceptance of 
this fact is shown by our insistence upon a direct vote 
of the state when the state adopts a new constitution. 
But ordinary citizens in private life — such as the pres- 
ent writer and most of his readers — neither can nor 
ought to spend their time in following all the minutiae 
of legislation. This work they ought to delegate to 
the legislators, who are to make it their special busi- 
ness; and if scores of bills are habitually presented 
for popular approval or disapproval at every election, 
it is not probable that good will come, and it is certain 
that the percentage of wise decisions by the people will 
be less than if only a few propositions of really great 
importance «are presented. It is necessary to guard 
not only against the cranks and well-meaning busy- 
bodies with fads, but also against the extreme laxity 
with which men are accustomed to sign petitions. 
There was a curious instance of this trait at the recent 
elections in Cincinnati. Aside from the regular nom- 
inees, there was in one district a man nominated on 
petition. He had enough names put on the petition 
to insure his running, but at the election he got only 
about one-seventh as many votes as there were names 
on the petition. A much larger proportion of men 
should be required to petition for an initiative than 
for a referendum, but in each case the regulations both 
as to the number of names required and as to addi- 

58 



NATIONALISM AND POPULAR RULE 

tional guarantees where necessary should be such as 
to forbid the invocation of this method of securing 
popular action unless the measure is one of real im- 
portance, as to which there is a deep-rooted popular 
interest. Oregon has already tried the principle of 
the initiative and the referendum, and it seems to have 
produced good results — certainly in the case of the 
referendum, and probably in the case of the initiative. 
This, of course, does not necessarily mean that the 
principle w T ould work well in all other communities, 
and under ouf system it is difficult to see at present 
how it -could normally have more than a state-wide 
application. In Switzerland it has been applied both 
in the cantons, or states, and in the federal or national 
government, and it seems on the whole to have worked 
fairly well. Those who anticipate too much from the 
new system, however, would do well to study its work- 
ings in Switzerland. There have now and then been 
odd results. Recently by the use of the initiative a 
certain bill was proposed to the federal legislature. 
There was such a strong demand for its passage, as 
shown by the vote on the initiative and by the general 
popular agitation, that the legislature passed it with 
but one dissenting vote. At the ensuing election the 
representative who had cast the dissenting vote was, 
because of having done so, beaten ; but on the referen- 
dum the people defeated the measure itself! They 
demanded it on the initiative, all their representatives 
in the legislature with one exception voted for it on 
:ts passage, they beat the one man who had voted 

59 



THE INITIATIVE, REFERENDUM AND RECALL 

against it, and then on the referendum they defeated 
the bill itself. 

Unquestionably an ideal representative body is the 
best imaginable legislative body. Such a body, if com- 
posed of men of unusual courage, intelligence, sym- 
pathy and high-mindedness, anxious to represent the 
people, and at the same time conscientious in their 
determination to do nothing that is wrong, would so 
act that there would never come the slightest demand 
for any change in the methods of enacting laws. Un- 
fortunately, however, in actual practice, too many of 
our legislative bodies have not really been representa- 
tive ; and not a few of the ablest and most prominent 
men in public life have prided themselves on their 
ability to use parliamentary forms to defeat measures 
for which there was a great popular demand. Spe- 
cial interests which would be powerless in a general 
election may be all-powerful in a legislature if they 
enlist the services of a few skilled tacticians; and the 
result is the same whether these tacticians are un- 
scrupulous and are hired by the special interests, or 
whether they are sincere men who honestly believe 
that the people desire what is wrong and should not 
be allowed to have it. Normally a representative 
should represent his constituents. If on any point of 
real importance he finds that he conscientiously differs 
with them, he must, as a matter of course, follow his 
conscience, and thereby he may not only perform his 
highest duty, but also render the highest possible serv- 
ice to his constituents themselves. But in such case 

60 



NATIONALISM AND POPULAR RULE 

he should not try to achieve his purpose by tricking 
his constituents or by adroitly seeking at the same 
time to thwart their wishes in secret and yet appar- 
ently to act so as to retain their good will. He should 
never put holding his office above keeping straight 
with his conscience, and if the measure as to which 
he differs with his constituents is of sufficient impor- 
tance, he should be prepared to go out of office rather 
than surrender on a matter of vital principle. Nor- 
mally, however, he must remember that the very 
meaning of the word representative is that the con- 
stituents shall be represented. It is his duty to try 
to lead them to accept his views, and it is their duty 
to give him as large a latitude as possible in matters 
of conscience, realizing that the more conscientious 
the representative is the better he will in general repre- 
sent them; but if a real and vital split on a matter of 
principle occurs, as in the case of a man who believes 
in the gold standard but finds that his constituents 
believe in free silver, the representative's duty is 
neither to abandon his own belief nor to try to beat 
his constituents by a trick, but to fight fairly for his 
convictions and cheerfully accept defeat if he cannot 
convert his constituents to his way of thinking — ex- 
actly the attitude that the late Senator Lamar, of 
Mississippi, once took on this very question and 
triumphed, and exactly the attitude that the late Con- 
gressman Dargan, of North Carolina, took at the 
price of his political life. 

Incidentally the referendum is certain to be of 
61 



THE INITIATIVE, REFERENDUM AND RECALL 

great use in a particular class of cases which very- 
much puzzle the average legislator — where a minority 
of his constituents, but a large and influential minority, 
may demand something concerning which there is 
grave doubt whether the majority does or does not 
sympathize with the demand. In such a case the 
minority is active and determined; the majority can 
be roused only if the question is directly before it. In 
other words, the majority does not count it for right- 
eousness in a representative if he refuses to yield to a 
minority; while a minority, on the other hand, will 
not tolerate adverse action. In such cases the temp- 
tation to the ordinary legislator is very great to yield 
to the demand of the minority, as he fears its con- 
crete and interested wrath much more than the tepid 
disapproval of the majority. In all such questions the 
referendum would offer much the wisest and most 
efficient and satisfactory solution. 

The opponents of the referendum and initiative, 
therefore, would do well to remember that the move- 
ment in favor of the two is largely due to the failure 
of the representative bodies really to represent the 
people. There has been a growing feeling that there 
should be more direct popular action as an alternative, 
not to the action of an ideal legislative body, but to 
the actions of legislative bodies as they are now too 
often found in very fact to act. The movement for 
direct popular government in Oregon, for instance, 
was in part the inevitable consequence of the gross 
betrayal of their trust by various representatives of 

62 



NATIONALISM AND POPULAR RULE 

Oregon in the national and state legislatures, and by 
the men put in appointive office through the exertions 
of these representatives. Moreover, the opponents, 
and, for the matter of that, the adherents likewise, 
of the proposed change, when they speak, whether in 
praise or in blame of its radicalism, would do well to 
remember that in one of the oldest and most conser- 
vative sections of the country there has existed 
throughout our national life, and now exists, a form 
of local self-government much more radical where it 
applies than even the initiative and referendum. I 
refer to the New England town meeting, at which all 
purely town matters are decided without appeal by 
the vote of the townspeople in meeting assembled. In 
no other part of the world, save in two or three can- 
tons of Switzerland, and perhaps in certain districts 
of Norway, is there any form of government so ab- 
solutely democratic, so absolutely popular, as the New 
England town meeting. The initiative and referen- 
dum represent merely the next stage. The town meet- 
ing has been proved to work admirably as regards 
certain governmental units where the citizens are of 
a certain type. The initiative and referendum have 
been shown to work well as regards certain larger 
constituencies of a different type. The men living in 
states where the town meeting has flourished for cen- 
turies should be the last to feel that the initiative and 
referendum are in and of themselves revolutionary 
propositions. 

On the other hand, the advocates of the initiative 
63 



THE INITIATIVE, REFERENDUM AND RECALL 

and referendum should, in their turn, remember that 
those measures are in themselves merely means and 
not ends; that their success or failure is to be deter- 
mined not on a priori reasoning but by actually testing 
how they work under varying conditions; and, above 
all, that it is foolish to treat these or any other devices 
for obtaining good government and popular rule as 
justifying sweeping condemnation of all men and 
communities where other governmental methods are 
preferred. There is probably no class of men who 
ought to study history as carefully as reformers — 
except reactionaries, for whom the need is even 
greater. A careful study of eighteenth-century France 
ought to show the reactionary that the rejection, by 
the beneficiaries of special privilege, of wise and mod- 
erate progressiveness, like that of Turgot, inevitably 
tends to produce the most calamitous explosion; and, 
on the other hand, the ultra-reformers will do well to 
ponder the harm done in their turn by the Jacobins, 
the inevitable reaction produced by their excesses, and 
especially by the queer attitude they assumed when 
they first defied the people and demanded the abso- 
lute rule of the people and then declined to submit to 
the judgment of the very people they had just defied 
because that judgment was not sufficiently favorable. 
The initiative and the referendum are devices for 
giving better and more immediate effect to the popular 
will. If in any given state — Vermont, for instance, 
or Massachusetts, or New Hampshire, or New Jersey, 
or New York — the people are not now ready to adopt 

64 



NATIONALISM AND POPULAR RULE 

either, or even if they never become ready — why, that 
is their affair, and the genuinely Progressive leader 
will no more ostracize and read out of the company 
of Progressives a New England state which thinks 
it can achieve popular government without the refer- 
endum than he would read out some state in another 
part of the country because it has never adopted the 
town meeting. Personally I should like to see the 
initiative and referendum, with proper safeguards, 
adopted generally in the states of the Union, and per- 
sonally I am sorry that the New England town meet- 
ing has not spread throughout the Union. But I cer- 
tainly do not intend to part company from other 
Progressives who fail to sympathize with me in either 
view, and I do intend to insist with all the strength 
I have that each device is a device and nothing more, 
is a means and not an end. The end is good govern- 
ment, obtained through genuine popular rule. Any 
device that under given conditions achieves this end 
is good for those conditions, and the value of each 
device must be tested purely by the answer to the 
question, does it or does it not secure the end in view ? 
One of the worst faults that can be committed by 
practical men engaged in the difficult work of self- 
government is to make a fetish of a name, or to con- 
found the means with the end. The end is to secure 
justice, equality of opportunity in industrial as well 
as in political matters, to safeguard the interests of 
all the people, and to work for a system which shall 
promote the general diffusion of well-being and yet 

65 



THE INITIATIVE, REFERENDUM AND RECALL 

give ample rewards to those who in any walk of life 
and in any kind of work render exceptional service to 
the community as a whole. We do not want to pro- 
duce a dead level of achievement and reward; we want 
to give the exceptional rewards, in the way of appro- 
bation or in whatever other fashion may be necessary, 
to the exceptional men, the Lincolns, Grants, Mar- 
shalls, Emersons, Longfellows, Edisons, Pearys, who 
each in his own line does some special service; but 
we wish so far as possible to prevent a reward being 
given that is altogether disproportionate to the serv- 
ices, and especially to prevent huge rewards coming 
where there is no service or indeed where the action 
rewarded is detrimental instead of beneficial to the 
public interest. 

Ours is a government of laws, but every one should 
keep always before him the fact that no law is worth 
anything unless there is the right kind of man behind 
it. In tropical America there are many republics 
whose constitutions and laws are practically identical 
with ours, yet some of these republics have, through- 
out their governmental career, alternated between des- 
potism and anarchy, and have failed in striking fash- 
ion at every point where in equally striking fashion 
we have succeeded. The difference was not in the 
laws or the institutions, for they were the same. The 
difference was in the men who made up the com- 
munity, in the men who administered the laws, and 
in the men who put in power the administrators. 

If we choose senators by popular vote instead of 
66 



NATIONALISM AND POPULAR RULE 

through the legislatures, we shall not thereby have 
secured good representatives; we shall merely have 
given the people a better chance to get good represen- 
tatives. If they choose bad men, unworthy men, 
whether their unworthiness take the form of corrup- 
tion or demagogy, of truckling to special interests or 
of truckling to the mob, we shall have worked no 
improvement. There have been in the past plenty of 
unworthy governors and congressmen elected, just as 
there have been plenty of bad senators elected. Simi- 
larly, if the direct primary merely means additional 
expense without compensating advantage in wise and 
just action, the gain will be nil. At present there are 
cities where the direct primary obtains, in which, so 
far as I can see, the boss system is about as firmly 
rooted as in those cities where the direct primary has 
not been introduced. So with the initiative and the 
referendum. Vermont has neither; Oregon has both. 
In whichever state there is the less corruption and 
greater justice, in whichever state the elected repre- 
sentatives of the people are more upright, clean and 
able, in whichever state the people are themselves wiser 
in action, more prompt to recognize and reward good 
service and fearlessness and independence in judge, 
governor, senator, or congressman, why, in that state 
we shall find the best government, wholly without 
regard to the particular device by which the govern- 
ment is obtained. If both states show equally well 
in these matters, why, it means that each has devised 
the instrument best suited for its own needs. It is 

67 



THE INITIATIVE, REFERENDUM AND RECALL 

folly not to adopt the new instrument if experience 
shows it to be an instrument which usually produces 
better results; and if we are convinced that it is a 
better instrument, then we should endeavor by reason 
and argument to get our neighbors to adopt it ; but it 
is also folly to refuse to work with good men who 
are striving for the same progressive ends as we are, 
merely because these good men prefer older instru- 
ments than those which we believe to be best fitted 
for the purpose. 

I believe in adopting every device for popular gov- 
ernment which is in theory good and when the prac- 
tice bears out the theory. It is of course true that 
each is only a device, and that its worth must be 
shown in actual practice ; and it is also true that where, 
as with us, the people are masters, the most vital need 
is that they shall show self-mastery as well as the 
power to master their servants. But it is often im- 
possible to establish genuine popular rule and get rid 
of privilege, without the use of new devices to meet 
new needs. I think that this is the situation which 
now confronts us in the United States, and that the 
adoption in principle of the programme on which the 
Progressives, especially in the West, are tending to 
unite, offers us the best chance to achieve the desired 
result. 



CHAPTER III 

THE ISSUES OF REFORM * 

The political discussions of recent years concern- 
ing the reform of our political methods have carried 
us back to where we began. We set out upon our 
political adventures as a nation with one distinct ob- 
ject, namely, to put the control of government in the 
hands of the people, to set up a government by public 
opinion thoroughly democratic in its structure and 
motive. We were more interested in that than in 
making it efficient. Efficiency meant strength; 
strength might mean tyranny; and we were minded 
to have liberty at any cost. And now, behold, when 
our experiment is a hundred and thirty odd years 
old, we discover that we have neither efficiency nor 
control. It is stated and conceded on every side that 
our whole representative system is in the hands of the 
" machine " ; that the people do not in reality choose 
their representatives any longer, and that their repre- 

1 By Governor Woodrow Wilson. Reprinted by permission, 
in part from the North American ,Review, May, 1910, and in part 
from an address on "The Issues of Reform," delivered in Kansas 
City on May 5, 1911. 

69 



THE INITIATIVE, REFERENDUM AND RECALL 

sentatives do not serve the general interest unless dra- 
gooned into doing so by extraordinary forces of agi- 
tation, but are controlled by personal and private in- 
fluences; that there is no one anywhere whom we can 
hold publicly responsible, and that it is hide-and-seek 
who shall be punished, who rewarded, who preferred, 
who rejected; that the processes of government 
amongst us, in short, are haphazard, the processes of 
control obscure and ineffectual. And so we are at the 
beginning again. We must, if any part of this be 
true, at once devote ourselves again to finding means 
to make our governments, whether in our cities, in 
our states, or in the nation, representative, responsible 
and efficient. 

Efficiency, of course, depends largely upon organ- 
ization. There must be definite authority, centered in 
somebody in particular whom we can observe and con- 
trol, and an organization built upon obedience and 
cooperation, an organization which acts together, with 
system, intelligence and energy. We were afraid of 
such an organization at the outset. It seemed to mean 
the concentration of authority in too few hands and 
the setting up of a government which might be too 
strong for the people. Our chief thought was of con- 
trol. We concluded that the best means of obtaining 
it was to make practically every office elective, whether 
great or small, superior or subordinate; to bring the 
structure of the government at every point into direct 
contact with the people. The derivation of every part 
of it we desired should be directly from the people. 

70 



THE ISSUES OF REFORM 

We were very shy of appointments to office. We 
wished only elections, frequent and direct. 

As part of the system — we supposed an indispens- 
able part — we defined the duties of every office, great 
or small, by statute, and gave to every officer a defi- 
nite legal independence. We wished him to take his 
orders only from the law — not from any superior, but 
from the people themselves, whose will the law was 
intended to embody. No officer appointed him and no 
officer could remove him. The people had given him 
his term, short enough to keep him in mind of his 
responsibility to them, and would not suffer any one 
but "themselves to displace him, unless he became him- 
self an actual breaker of the law. In that case, he 
might be indicted like any other lawbreaker. But his 
indictment would be a family affair; no discipline im- 
posed upon him by his superiors in office but a trial 
and judgment by his neighbors. A district attorney, 
elected on the same " ticket " with himself, would 
bring the matter to the attention of a grand jury of 
their neighbors, men who had in all likelihood voted 
for them both, and a petit jury of the same neighbor- 
hood would hear and decide the case if a true bill were 
found against him. He stood or fell by their judg- 
ment of the law, not by his character or efficiency. 

A sheriff in one of the states suffered a prisoner 
to be taken from him by a mob and hanged. He 
made no show or pretence even of resistance. The 
governor of the state wrote him a sharp letter or re- 
buke for his criminal neglect of his duty. He replied 

71 



THE INITIATIVE, REFERENDUM AND RECALL 

in an open letter in which he bluntly requested the 
governor to mind his own business. The interesting 
feature of the reply was not its impudence, but the 
fact that it could be written with perfect impunity. 
The fact was as he had stated it. He was not re- 
sponsible to the governor or to any other officer what- 
ever, but only to the voters of his neighborhood, many 
of whom had composed the mob which took 
his prisoner from him and hanged him at their 
leisure. He was never called to account for what he 
had done. 

This is a sample of our direct responsibility to 
the people as a legal system. It was very serviceable 
and natural so long as our communities were them- 
selves simple and homogeneous. The old New Eng- 
land town meeting, for example, was an admirable 
instrument of actual self-government. Where neigh- 
borhoods are small, and neighbors know one another, 
they can make actual selection of the men they wish 
to put into office. Every candidate is known by every- 
body, and the officers of government when elected 
serve a constituency of whose interests and opinions 
they are keenly and intimately aware. Any com- 
munity whose elements are homogeneous and whose 
interests are simple can govern itself very well in this 
informal fashion. The people in such a case, rather 
than the government, are the organism. But those 
simple days have gone by. The people of our present 
communities, from one end of the country to the other, 
are not homogeneous but composite, their interests 

12. 



THE ISSUES OF REFORM 

varied and extended, their life complex and intricate. 
The voters who make them up are largely strangers 
to each other. Town meetings are out of the question, 
except for the most formal purposes, perfunctorily 
served ; life sweeps around a thousand centers, and the 
old processes of selection, the old bases of responsi- 
bility, are impossible. Officers of government used 
to be responsible because they were known and closely 
observed by neighbors of whose opinions and prefer- 
ences they were familiarly aware; but now they are 
unknown, the servants of a political organization, not 
of their neighbors, irresponsible because obscure, or 
because defended by the very complexity of the system 
of which they form a part. The elective items on 
every voter's programme of duty have become too 
numerous to be dealt with separately and are, conse- 
quently, dealt with in the mass and by a new system, 
the system of political machinery against which we 
futilely cry out. 

I say " futilely cry out " because the machine is 
both natural and indispensable in the circumstances and 
cannot be abolished unless the circumstances are 
changed, and very radically changed at that. We have 
given the people something so vast and complicated 
to do in asking them to select all the officers of govern- 
ment that they cannot do it. It must be done for them 
by professionals. There are so many men to be named 
for office; it is futile to name one or two unless you 
name a whole ticket; the offices that fill a ticket are 
so many and so obscure that it is impossible the thing 
6 73 



THE INITIATIVE, REFERENDUM AND RECALL 

should be done informally and offhand by direct, un- 
assisted popular choice. There must be a preliminary 
process of selection, of nomination, of preparing the 
ticket as a whole, unless there is to be hopeless confu- 
sion, names put up at haphazard and nobody elected by 
a clear majority at the end. The machine is as yet an 
indispensable instrumentality of our politics. 

Public opinion in the United States was never 
better informed, never more intelligent, never more 
eager to make itself felt in the control of government 
for the betterment of the nation than it is now; and 
yet, I venture to say, it was never more helpless to 
obtain its purposes by ordinary and stated means. It 
has to resort to convulsive, agitated, almost revolu- 
tionary means to have its way. It knows what it 
wants. It wants good men in office, sensible laws ad- 
justed to existing conditions, conscience in affairs and 
intelligence in their direction. But it is at a loss how 
to get these. It flings itself this way and that, fright- 
ens this group of politicians, pets that, hopes, protests, 
demands, but cannot govern. 

In its impatience it exaggerates the inefficiency and 
bad morals of its governments very grossly and is very 
unfair to men who would serve it if they could, who 
do serve it when they can, but who are caught in the 
same net of complicated circumstances in which opinion 
finds itself involved. There is' no just ground for be- 
lieving that our legislative and administrative bodies 
are generally corrupt. They are not. They are made 
up for the most part of honest men who are without 

74 



THE ISSUES OF REFORM 

leadership and without free opportunity; who try to 
understand the public interest and to devise measures 
to advance it, but who are subordinate to a political 
system which they cannot dominate or ignore. The 
machinery of the bodies to which they belong is in- 
organic, as decentralized as our elective processes 
would lead one to expect. No one person or group 
of persons amongst them has been authorized by 
the circumstances of their election to lead them or 
to assume responsibility for their programme of 
action. They therefore parcel out initiative and re- 
sponsibility in conformity with the obvious dictates 
of the system. They put their business in the 
hands of committees — a committee for each sub- 
ject they have to handle — and give each of their mem- 
bers a place upon some committee. The measures pro- 
posed to them, therefore, come from the four quarters 
of heaven, from members big and little, known 
and unknown, but never from any responsible 
source. There can be neither consistency nor con- 
tinuity in the policies they attempt. What they do 
cannot be watched, and it cannot be itself organized 
and made a whole of. There is so much of 
it and it is so miscellaneous that it cannot be debated. 
The individual member must do the best he can amidst 
the confusion. He has only an occasional part and 
opportunity. 

He is controlled, as a matter of fact, from out-of- 
doors — not by the views of his constituents, but by a 
party organization which is intended to hold the hetero- 

75 



THE INITIATIVE, REFERENDUM AND RECALL 

geneous elements of our extraordinary political system 
together. 

When public opinion grows particularly restless 
and impatient of our present party organization, it is 
common to hear it defended by the argument that 
parties are necessary in the conduct of a popular gov- 
ernment; and the argument can be sustained by very 
sound and eloquent passages out of Burke and many 
another public man of the English-speaking peoples, 
who has been below the surface of affairs and convinced 
us of the real philosophy of our form of government ; 
but the argument is quite aside from the point. Of 
course parties are necessary. They are not only neces- 
sary but desirable, in order that conviction upon great 
public questions may be organized and bodies of men 
of like opinion and purpose brought together in effec- 
tive and habitual cooperation. Successful, orderly 
popular government is impossible without them. But 
the argument for our own particular organization of 
parties is quite another matter. That organization is 
undoubtedly necessary in the circumstances, but you 
cannot prove its necessity out of Burke or any other 
man who made permanent analysis of liberty. We 
could have parties without organizing them in this par- 
ticular way. There have been parties in free govern- 
ments time out of mind and in many parts of the 
world, but never anywhere else an organization of 
parties like our own. 

And yet that organization is for the time being 
necessary. It centers, as everybody knows, in the nom- 

76 



THE ISSUES OF REFORM 

inating machinery. There could be no party organiza- 
tion if our elective system were literally carried out 
as it was intended to be, by the actual direct and in- 
formal selection of every officer of government, not by 
party agents or leaders, but by the scattered voters of 
the thousand neighborhoods of a vast country. It was 
necessary to devise some machinery by which these in- 
numerable choices should be coordinated and squared 
with party lines. It was a huge business and called 
for a compact and efficient organization. 

Moreover, there was more than the process of 
selection to be overseen and directed. Students of our 
political methods have not often enough brought into 
their reckoning the great diversity of social and eco- 
nomic interest and development that has existed 
among the different sections and regions of this vari- 
ous country, which even yet shows every stage and 
variety of growth and make-up and an extraordinary 
mixture of races and elements of population. It has 
been necessary to keep this miscellaneous body together 
by continual exterior pressure, to give it a common 
direction and consciousness of purpose by sheer force 
and organization, if political action were not to become 
hopelessly confused and disordered. It was not con- 
scious of any immediate solidarity of interest or ob- 
ject. It might have broken up into a score of groups 
and coteries. We might have had more parties than 
France, as many sections of political opinion as there 
were distinctly marked regions of population and de- 
velopment. Party interest has been kept alive, party 

77 



THE INITIATIVE, REFERENDUM AND RECALL 

energy stimulated, by entrusting to local agents and 
leaders the duty of seeing to it that systematic party 
nominations were regularly made and urged upon the 
voters by organized campaigns, whether there were any 
natural reason or not why, in any given locality, this 
party or that should be preferred ; and national parties 
have been pieced together out of these local fragments. 
The creation of the parts was necessary to the creation 
of the whole. I do not know how else coordinated 
parties could have been made out of such heterogene- 
ous materials and such diversified interests. 

The result has been that the nominating machinery 
has become the backbone of party organization. By 
it local leaders are rewarded with influence or office, 
are kept loyal, watchful and energetic. By it national 
majorities are pieced together. If one goes back to the 
source of this matter, therefore, it is easy to see that 
the nominating machine was no barnacle, but a natural 
growth, the natural fruit of a system which made it 
necessary to elect every officer of government. The 
voter has not the leisure and, therefore, has not the 
knowledge for the difficult and intricate business. He 
cannot organize a government every year or two, make 
up its whole personnel, apply its punishments and re- 
wards, effect its dismissals and promotions. Neither 
is there any officer or any group of officers of the gov- 
ernment itself who can organize it for him, for no 
officer has the legal authority. The structure of the 
government is disintegrated by the law itself, so far 
as its personnel is concerned. The constitutions and 

78 



THE ISSUES OF REFORM 

statutes by which the officers are created endeavor, of 
course, to integrate their functions; but they disinte- 
grate their personnel by making each officer the direct 
choice of the voters. The only possible means of in- 
tegration lies outside governments, therefore, and is 
extra-legal. It is the nominating machine. The ma- 
chine applies the necessary discipline of administration 
and keeps the separately elected officers of one mind in 
the performance of their duties — loyal to an exterior 
organization. 

The punishment it inflicts is definitely and clearly 
understood. It will not renominate any man who 
when in office has been disobedient to party commands. 
It can in effect dismiss from office. Any one who 
wishes to remain in public life, at any rate in the 
smaller and less conspicuous offices within the gift of 
the managers, must keep in their good graces. Inde- 
pendence offends the machine deeply, disobedience it 
will not tolerate at all. Its watchfulness never flags; 
its discipline is continuous and effective. It is the chief 
instrument of party government under our system of 
elections. 

Thus have we necessitated the setting-up outside 
the government of what we were afraid ourselves to 
set up inside of it : concentrated power, administrative 
discipline, the authority to appoint and dismiss. For 
the power to nominate is virtually the power to ap- 
point and to dismiss, as Professor Ford has pointed out 
in his lucid and convincing " Rise and Growth of 
American Politics." It is exercised by the bosses, in- 

79 



THE INITIATIVE, REFERENDUM AND RECALL 

stead of by responsible officers of the government — by 
the men who have charge of the nominating machin- 
ery; men who are themselves often entirely outside the 
government as legally constituted, hold no office, do 
not ask the people for their suffrage, and are picked 
out for their function by private processes over which 
the people have no control whatever. They are private 
citizens and exercise their powers of oversight and 
management without any public invitation of any kind. 
Just because there are innumerable offices to be filled 
by election, just because there are long and elaborate 
tickets to be made up, just because it needs close and 
constant attention to the matter to perform the duty of 
selection successfully — as careful and constant atten- 
tion as the superintendent of a great business or the 
head of a great government bureau factory, his office, 
or his bureau — it cannot possibly be done by the voters 
as a body. It requires too much knowledge and too 
much judgment, bestowed upon little offices without 
number as well as upon great. No officer of the gov- 
ernment is authorized to appoint or select. Party 
managers must undertake it, therefore, who are not 
officers of the government; and their nominations are 
virtual appointments if they belong to the successful 
party. The voters only choose as between the selec- 
tions, the appointees, of the one party boss or the other. 
It is out of the question for them to make independent 
selections of their own. 

If this machine, thus bossed and administered, is 
an outside power over which the voter has no con- 

80 



THE ISSUES OF REFORM 

trol — which he can defeat only occasionally, when, in 
a fervor of reform, he prefers the candidates of some 
temporary amateur machine (that is, nominating ap- 
paratus) set up by some volunteer " committee of one 
hundred " which has undertaken a rescue — it is the 
system which is to blame, not the politicians. Some- 
body, amateurs or professionals, must supply what they 
supply. We have created the situation and must either 
change it or abide by its results with such patience and 
philosophy as we can command. 

There can be no mistaking the fact that we are now 
face to face with political changes which may have a 
very profound effect upon our political life. Those 
who do not understand the impending change are 
afraid of it. Those who do understand it know that 
it is not a process of revolution, but a process of restor- 
ation rather, in which there is as much healing as 
hurt. There are strain and peril, no doubt, in every 
process of change, but the chief peril comes from 
undertaking it in the wrong temper. It lies not in the 
change itself so much as in the method of some of 
those who promote it. It is a noteworthy circumstance 
that in proportion as the people of the country come 
to recognize what it is that renders them uneasy and 
what it is that is proposed by way of reformation they 
lose their fear and take on a certain irresistible enthu- 
siasm. 

The American people are naturally a conservative 
people. They do not wish to touch the stable founda- 
tions of their life; they have a reverence for the rights 

81 



THE INITIATIVE, REFERENDUM AND RECALL 

of property and the rights of contract which is based 
upon a long experience in a free life, in which they 
have been at liberty to acquire property as they pleased 
and bind themselves by such contracts as suited them. 
No other people have ever had such freedom in the 
establishment of personal relationships or property 
rights. They do not mean to lose this freedom or to 
impair any rights at all, but they do feel that a great 
many things in their economic life and in their politi- 
cal action are out of gear. They have been cheated 
by their own political machinery. They have been 
dominated by the very instrumentalities which they 
themselves created in the field of industrial action. The 
liberty of the individual is hampered and impaired. 
They desire, therefore, not a revolution, not a cutting 
loose from any part of their past, but a readjustment 
of the elements of their life, a reconsideration of what 
it is just to do and equitable to arrange in order that 
they may be indeed free, may indeed make their own 
choices and live their own life undominated, unafraid, 
unsuspicious, confident that they will be served by their 
public men and that the open processes of their govern- 
ment will bring to them justice and timely reform. 

What we are witnessing now is not so much a con- 
flict of parties as a contest of ideals, a struggle between 
those who, because they do not understand what is 
happening, blindly hold on to what is and those who, 
because they do see the real questions of the present 
and of the future in a clear, revealing light, know 
that there must be sober change; know that progress, 



THE ISSUES OF REFORM 

none the less active and determined because it is sober 
and just, is necessary for the maintenance of our insti- 
tutions and the rectification of our life. In both the 
great national parties there are men who feel this 
ardor of progress and of reform, and in both parties 
there are men who hold back, who struggle to restrain 
change, who do not understand it or who have reason 
to fear it. Undoubtedly the present moment offers a 
greater and larger opportunity to the Democratic party 
than to the Republican party; but this is not because 
there are not men in the Republican party who have 
devoted their whole intelligence and energy to neces- 
sary reform, but because the Democratic party as a 
whole is freer to move and to act than the Republican 
is and is held back by a smaller and weaker body of 
representatives of the things that are and have been. 
We generally sum up what we mean by the reac- 
tionary forces by speaking of them as embodied in 
the interests. By that we do not mean the legitimate 
but the illegitimate interests, those which have not 
adjusted themselves to the public interest, those which 
are clinging to their vested rights as a bulwark against 
the adjustment which is absolutely necessary if they 
are to be servants and not masters of the public. The 
chief political fact of the day is that the Republican 
party is more closely allied with these interests than 
the Democratic party. This circumstance constitutes 
the opportunity of the Democrats. They are free to 
act and to move in the right direction if they will but 
accept the responsibility and the leadership. The 

83 



THE INITIATIVE, REFERENDUM AND RECALL 

Democratic party is more in sympathy with the new 
tendencies than the Republican. Its free forces are 
the forces of progress and of popular reform. 

Both parties are of necessity breaking away from 
the past, whether they will or not, because our life has 
broken away from the past. The life of America is 
not the life it was twenty years ago. It is not the life 
it was ten years ago. We have changed our economic 
conditions from top to bottom, and with our economic 
conditions has changed also the organization of our 
life. The old party formulas do not fit the present 
problems. The old cries of the stump sound as if they 
belonged to a past age which men have almost forgot- 
ten. The things which used to be put into the party 
platforms of ten years ago would sound antiquated 
now. You will note, moreover, that the political audi- 
ences which nowadays gather together are not partisan 
audiences. They are made up of all elements and 
come together, not to hear parties denounced or 
praised, but to hear the interests of the nation discussed 
in new terms — the terms of the present moment. We 
have so complicated our machinery of government, 
we have made it so difficult, so full of ambushes and 
hiding-places, so indirect, that instead of having true 
representative government we have a great inextricable 
jungle of organization intervening' between the people 
and the processes of their government; so that by 
stages, without intending it, without being aware of it, 
we have lost the purity and directness of representative 
government. What we must devote ourselves to now 

84 



THE ISSUES OF REFORM 

is, not to upsetting our institutions, but to restoring 
them. 

Undoubtedly we should avoid excitement and 
should silence the demagogue. The man with power, 
but without conscience, could, with an eloquent tongue, 
if he cared for nothing but his own power, put this 
whole country into a flame, because the whole country 
believes that something is wrong and is eager to fol- 
low those who profess to be able to lead it away from 
its difficulties. But it is all the more necessary that 
we should be careful who are our guides. The pro- 
cesses we are engaged in are fundamentally conserva- 
tive processes. If your tree is diseased it is no revolu- 
tion to restore to it the purity of its sap, to renew the 
soil that sustains it, to re-establish the conditions of 
its health. That is a process of life, of renewal, of re- 
demption. There is no ground for alarm, therefore. 
We are bent upon a perfectly definite programme, 
which is one of health and renewal. 

Let us ask ourselves very frankly what it is that 
needs to be corrected. To sum it all up in one sen- 
tence, it is the control of politics and of our life by 
great combinations of wealth. Men sometimes talk as 
if it were wealth we were afraid of, as if we were 
jealous of the accumulation of great fortunes. Noth- 
ing of the kind is true. America has not the slightest 
jealousy of the legitimate accumulation of wealth. 
Everybody knows that there are hundreds and thou- 
sands of men of large means and large economic power 
who have come by it all not only perfectly legitimately, 

8s 



THE INITIATIVE, REFERENDUM AND RECALL 

but in a way that deserves the thanks and admiration 
of the communities they have served and developed. 
But everybody knows also that some of the men who 
control the wealth and have built up the industry of the 
country seek to control politics and also to dominate 
the life of common men in a way in which no man 
should be permitted to dominate. 

In the first place, there is the notorious operation 
of the bi-partisan political machine: I mean the ma- 
chine which does not represent party principle of any 
kind, but which is willing to enter into any combina- 
tion, with whatever group of persons or of politicians, 
to control the offices of localities and of states and of 
the nation itself in order to maintain the power of 
those who direct it. This machine is supplied with its 
funds by the men who use it in order to protect them- 
selves against legislation which they do not desire and 
in order to obtain the legislation which is necessary for 
the prosecution of their purposes. 

The methods of our legislatures make the opera- 
tions of such machines easy and convenient. For very 
little of our legislation is formed and effected by open 
debate upon the floor. Almost all of it is framed in 
lawyers' offices, discussed in committee rooms, passed 
without debate. Bills that the machine and its backers 
do not desire are smothered in committee; measures 
which they do desire are brought out and hurried 
through their passage. It happens again and again 
that great groups of such bills are rushed through 
in the hurried hours that mark the close of the legis- 

86 



THE ISSUES OF REFORM 

lative sessions, when every one is withheld from vigi- 
lance by fatigue and when it is possible to do secret 
things. 

When we stand in the presence of these things and 
see how complete and sinister their operation has been 
we cry out with no little truth that we no longer have 
representative government. 

Among the remedies proposed in recent years have 
been the initiative and referendum in the field of legis- 
lation and the recall in the field of administration. 
These measures are supposed to be characteristic of 
the most radical programmes, and they are supposed 
to be meant to change the very character of our gov- 
ernment. They have no such purpose. Their inten- 
tion is to restore, not to destroy, representative gov- 
ernment. It must be remembered by every candid 
man who discusses these matters that we are contrast- 
ing the operation of the initiative and the referendum, 
not with the representative government which we pos- 
sess in theory and which we have long persuaded our- 
selves that we possessed in fact, but with the actual state 
of affairs, with legislative processes which are carried 
on in secret, responding to the impulse of subsidized 
machines and carried through by men whose unhappi- 
ness it is to realize that they are not their own mas- 
ters, but puppets in a game. 

If we felt that we had genuine representative gov- 
ernment in our state legislatures no one would propose 
the initiative or referendum in America. They are 
being proposed now as a means of bringing our repre- 

87 



THE INITIATIVE, REFERENDUM AND RECALL 

sentatives back to the consciousness that what they are 
bound in duty and in mere policy to do is to represent 
the sovereign people whom they profess to serve and 
not the private interests which creep into their coun- 
sels by way of machine orders and committee confer- 
ences. The most ardent and successful advocates of 
the initiative and referendum regard them as a sobering 
means of obtaining genuine representative action on 
the part of legislative bodies. They do not mean to 
set anything aside. They mean to restore and re-in- 
vigorate, rather. 

The recall is a means of administrative control. 
If properly regulated and devised it is a means of re- 
storing to administrative officials what the initiative 
and referendum restore to legislators — namely, a sense 
of direct responsibility to the people who chose them. 

The recall of judges is another matter. Judges are 
not lawmakers. They are not administrators. Their 
duty is not to determine what the law shall be, but to 
determine what the law is. Their independence, their 
sense of dignity and of freedom, is of the first conse- 
quence to the stability of the state. To apply to them 
the principle of the recall is to set up the idea that 
determinations of what the law is must respond to 
popular impulse and to popular judgment. It is suf- 
ficient that the people should have the power to change 
the law when they will. It is not necessary that they 
should directly influence by threat of recall those who 
merely interpret the law already established. The im- 
portance and desirability of the recall as a means of 

88 



THE ISSUES OF REFORM 

administrative control ought not to be obscured by 
drawing it into this other and very different field. 

The second power we fear is the control of our life 
through the vast privileges of corporations which use 
the wealth of masses of men to sustain their enter- 
prise. It is in connection with this danger that it is 
necessary to do some of our clearest and frankest 
thinking. It is a fundamental mistake to speak of 
the privileges of these great corporations as if they 
fell within the class of private right and of private 
property. Those who administer the affairs of great 
joint : stock companies are really administering the 
property of communities, the property of the whole 
mass and miscellany of men who have bought the stock 
or the bonds that sustain the enterprise. The stocks 
and the bonds are constantly changing hands. There 
is no fixed partnership. Moreover, managers of such 
corporations are the trustees of moneys which they 
themselves never accumulated, but which have been 
drawn together out of private savings here, there, and 
everywhere. 

What is necessary in order to rectify the whole 
mass of business of this kind is that those who con- 
trol it should entirely change their point of view. 
They are trustees, not masters, of private property, 
not only because their power is derived from a multi- 
tude of men, but also because in its investments it 
affects a multitude of men. It determines the develop- 
ment or decay of communities. It is the means of 
lifting or depressing the life of the whole country. 
7 89 



THE INITIATIVE, REFERENDUM AND RECALL 

They must regard themselves as representatives of a 
public power. There can be no reasonable jealousy 
of public regulation in such matters, because the op- 
portunities of all men are affected. Their property is 
everywhere touched, their savings are everywhere ab- 
sorbed, their employment is everywhere determined, 
by these great agencies. What we need, therefore, is 
to come to a common view which will not bring antag- 
onisms, but accommodations. The programmes of par- 
ties must now be programmes of enlightenment and re- 
adjustment, not revolutionary but restorative. The 
processes of change are largely processes of thought, 
but unhappily they cannot be effected without becom- 
ing political processes also, and that is the deep respon- 
sibility of public men. What we need, therefore, in 
our politics is an instant alignment of all men free and 
willing to think and to act without fear upon their 
thought. 

This is just as much a constructive age in politics, 
therefore, as was the great age in which our federal 
government was set up, and the man who does not 
awake to the opportunity, the man who does not sacri- 
fice private and exceptional interests in order to serve 
the common and public interest, is declining to take 
part in the business of an heroic age. I am sorry for 
the man who is so blind that he does not see the oppor- 
tunity, and I am happy in the confidence that in this 
era men of strength and of principle will see their 
opportunity of immortal service. 

I am not one of those who wish to break connec- 
90 



THE ISSUES OF REFORM 

tions with the past, nor am I one of those who wish 
change for the mere sake of variety. The only men 
who do that are the men who want to forget some- 
thing, the men who filled yesterday with something 
they would rather not recall to-day. Change is not 
interesting unless it is constructive, and it is an age 
of construction that must put fire into the blood of 
any man worthy of the name. 



CHAPTER IV 

THE DEVELOPMENT OF DIRECT LEGISLATION 
IN AMERICA 1 

The referendum is an established principle in 
American political life. It is not a new-fangled de- 
vice, as it is characterized by opponents. Apart from 
its state use in the adoption or amendment of state con- 
stitutions and on other important subjects, the number 
and variety of questions thus referred in cities is so 
large that one who examines into the history of his 
own and of neighboring cities will probably be some- 
what amazed as to their frequency and importance. 
Aside from its best-known use to decide vexatious 
topics like local option and prohibition, the referendum 
is used on financial questions like issuing bonds, and 
on undertaking new enterprises, like schools, hospitals, 
public buildings, parks, boulevards, sewers, water- 
works, lighting plants, as well as on the most funda- 
mental questions like the incorporation of cities and 
the acceptance of their charters'; The constitution of 
Massachusetts, by amendment adopted as early as 

1 By Robert Treat Paine. Reprinted from the Proceedings of 
the National Municipal League (1908). 

92 



DIRECT LEGISLATION IN AMERICA 

1 82 1, forbids the legislature to incorporate any town 
as a city except with the consent of a majority vote 
of the citizens of that town. 

The direct legislation, however, to which we are 
directing our attention, introduces the distinction or 
differentiation in that the people themselves determine, 
and not the legislature or the municipal legislative au- 
thorities, whether or not questions shall be referred 
through the referendum to a popular decision. The 
referendum is not compulsory : it need not be used un- 
less there is a positive demand for it — a petition signed 
by a fixed number or percentage of the voters asking 
for it. J Its use is optional. It becomes therefore a 
true people's veto to be used when occasion requires 
in the judgment of the people whether the municipal 
legislative authorities so wish or not. The people 
thus become directly sovereign in regard to the acts 
of their own agents or representatives. * Similarly the 
initiative takes its rise from an initial action by the 
people in those cases where their representatives ap- 
pear unwilling to act in accordance with the supposed 
will of the community. The authority of James Bryce 
is not necessary to convince Americans that the gov- 
ernment of their cities is the conspicuous failure in 
American political institutions. 

j The federal system, with its two chambers based 
on the theory of checks and balances, has been found 
wanting. Whether or not it sufficed for earlier days 
of simpler requirements when the non-interference 
idea of government prevailed is immaterial. Our 

93 



THE INITIATIVE, REFERENDUM AND RECALL 

cities to-day face problems of utmost gravity, arising 
not only out of the great increase in population, but 
also out of the far greater demands from this con- 
gested urban population which asks for and should 
be granted a higher standard of comforts and necessi- 
ties. Modern civilization therefore requires that city 
governments be aggressive, positive forces that can 
grapple with and solve the problems as they arise or 
are foreseen. 

Unfortunately, in rather marked contrast with 
modern Europe and England, our cities have been 
mere creatures of the legislature with enumerated 
powers limited to known requirements. Therefore 
every new task has involved resort to the legislature. 
Results have been disastrous both in enfeebling the 
city's self-reliance and civic character, and in leading 
to an undue, injudicious and unjustifiable interference 
by the state authorities. So well recognized has been 
this evil that a majority of the state constitutions now 
forbid the legislatures to interfere by special legisla- 
tion. Owing however to the legislative device of clas- 
sification this effort has been but partially successful. 
In the West a remedy has been sought in a different 
direction, through the constitutional assertion of the 
independence, more or less complete, of the cities from 
the legislature, by the adoption of the home-rule char- 
ter system. 

In 1875 tne constitution of Missouri was the first 
thus to be amended to give cities of over 100,000 
population, that is St. Louis and later Kansas City, 

94 



DIRECT LEGISLATION IN AMERICA 

power to decide upon their charters by a vote of their 
own citizens. 

California followed with a constitutional amend- 
ment in 1879, but provided that these charters after 
adoption by the voters must be submitted to the leg- 
islature for ratification or rejection as a whole. The 
popularity of this move is evidenced by the vote in 
its favor of 114,617 to 42,076, in 1892, when the 
minimum limit of population, after a previous reduc- 
tion in 1887 to 10,000, was still further reduced to 
3,400. California further extended the power of cities 
over their charters by amending article XI, section 8, 
of the constitution, in November, 1906, so as to pro- 
vide that an initiative petition of fifteen per cent, can 
compel the submission to a popular vote at a regular 
municipal election of any proposed charter amend- 
ment. 

In Oregon the constitutional amendment granting 
the voters of every city and town power to enact and 
amend their municipal charters was adopted on an 
initiative petition from the people, by a vote of 52,567 
to 19,852 on June 4, 1906. 

Washington, Minnesota, Colorado and Oklahoma 
have carried on this home-rule movement. In Michi- 
gan the constitutional convention inserted a home 
rule section in the new constitution which was voted 
on and carried November 3, 1908. 

But far more widespread or at least far more suc- 
cessful over a wider stretch of territory is the move- 
ment we are now to consider for more direct and 

95 



/•" 



THE INITIATIVE, REFERENDUM AND RECALL 

popular control by the citizens themselves of their 
municipal affairs. Both theoretically and practically 
this movement appears justified in its aims. It gives 
the best promise of helping the ultimate solution of 
our municipal problems. This movement is either ad- 
visory or mandatory in its operation. The advisory 
system was perhaps the easier to enact, but the ten- 
dency of late has been strongly towards the mandatory 
initiative and referendum. 

The advisory system aims to secure action by city 
authorities in conformity with the popular judgment 
through milder methods than direct legislation. The 
voters are allowed to suggest or to express their opin- 
ion on a course of action without however thereby 
enacting such legislation or ordinance. Such a vote 
is merely advisory in character and leaves the city 
fathers with full power to act as they think best, 
whether it be in accordance with or against the wishes 
of the people. Winnetka, Illinois, is generally given 
the credit for devising the method of securing a popu- 
lar decision of important questions through pledging 
candidates before their election to permit the reference 
to the people of such questions when petitioned for. 
The council was thus induced to pass an ordinance 
providing for the submission to the voters before their 
passage of all ordinances for franchises or for bond 
issues and also all ordinances for which fifty voters 
may have petitioned within five days after public post- 
ing before their passage. Geneva, Illinois, extended 
this system to include, in addition to the referendum, 

96 



DIRECT LEGISLATION IN AMERICA 

the advisory initiative on any public question when 
petitioned for by ten per cent, of the voters. Candi- 
dates are questioned and pledged before election to 
follow these rules. 

This method has been followed by several cities. 
Detroit, on June 17, 1902, unanimously adopted rules 
of procedure by which a petition of five per cent, of 
the voters may force all ordinances granting or renew- 
ing public utility franchises, which have passed their 
third reading in the council, to a popular vote at the 
next election, and also any other measure instructing 
the 'officials. A home-rule charter had been declared 
unconstitutional by the supreme court, thus depriving 
the city of the right granted therein for a referendum 
on street railway franchises. A long-term extension 
of such franchise was favored by a majority of the 
council, but having pledged themselves to a referen- 
dum while candidates for office a spirited demonstra- 
tion of the citizens induced them to pass the above rule. 
The proposal to extend the franchise was thereupon 
dropped in view of the threatened veto. The first use 
in Detroit of the referendum on franchises was made 
November 6, 1906, when the Detroit United Railway 
franchise was rejected decisively — and wisely accord- 
ing to the Civic News, a good government publication 
of Detroit. 

Such self-denying council rules are not, however, 
either permanent or self-enforcing. A two-thirds vote 
may suspend them at any time, perhaps when needed 
most. To secure their continued annual adoption may 

97 



THE INITIATIVE, REFERENDUM AND RECALL 

require an annual pledging campaign. This year's 
manual of Detroit [1908] does not contain the rule 
for instructing officials through the initiative. To 
guarantee action by a representative government in 
harmony with the popular will presupposes not a vol- 
untarily assumed obligation of a temporary and op- 
tional character, but an obligation of superior and con- 
trolling force embodied in the fundamental law or 
charter. 

Grand Rapids, Michigan, petitioned the legislature 
for a new charter, which was approved June 6, 1905, 
granting a twelve per cent, referendum on any ordi- 
nance and a twelve per cent, initiative for an advisory 
vote on charter amendments. This referendum has 
been used twice, once to approve of the franchise 
granted to the Muskegon Power Company, and 
again November 6, 1906, to reject an ordinance pro- 
hibiting Sunday shows, 6,895 to 6,281. Under the 
advisory initiative the voters have twice asked for 
amendments to their charter; on April 2, 1906, voting 
for an advisory initiative on ordinances by 6,196 to 
1,736 and for the recall by 7,142 to 1,976; and on No- 
vember 6, 1906, voting for the establishment of non- 
partisan municipal elections by 8,865 to 3,350. Though 
this question carried every precinct in a Republican 
city and the total vote, 12,215, wa < s within 729 of the 
total cast for governor, yet the Republican legislature 
refused to grant the request; as it also refused the 
other requests. It is stated that the above charter pro- 
visions are generally considered beneficial, though it 

98 



DIRECT LEGISLATION IN AMERICA 

is felt that the enactment of charter amendments 
should be compulsory after submission to and approval 
by the electors. 

Buffalo, under the general welfare clause of its 
charter, adopted, July 13, 1904, a provision (chapter 
45, of the city ordinances), which is still in force and 
which authorizes the submission at a general election 
of any questions of public policy to obtain the opinion 
of the electors thereon, either on the petition of five 
per cent, of the voters or upon resolution of the coun- 
cil. On November 7, 1905, such an advisory initiative 
resulted in a vote of 7,767 to 1,979 in favor of a mu- 
nicipal electric lighting and power plant. The council 
took no action to carry out this vote, but used it to 
obtain somewhat more favorable prices from the ex- 
isting private company. On November 3, 1908, the 
advisory initiative asking for a new charter with the 
largest possible measure of home rule obtained the en- 
dorsement of 13,286 for, to 4,346 against. 

In Illinois a public-opinion law was enacted May 
4, 1 90 1, allowing questions to be referred to the voters 
of cities for an expression of opinion on the petition 
of twenty-five per cent. Chicago has made effective 
use of this authority, voting in April, 1902, for direct 
primary nominations of city officers by 140,860 to 
17,654, and on April 5, 1904, for the popular election 
of the school board by 115,553 to 58,432. Both at 
these elections and on April 4, 1905, April 3, 1906, 
and April 2, 1907, there were referenda on the burning 
street-railway issue. The question has been too promi- 

99 



THE INITIATIVE, REFERENDUM AND RECALL 

nent throughout the country during all these years to 
need extended comment. The first votes were over- 
whelmingly in favor of municipal ownership of gas 
and electric lighting plants, as well as of the street 
railways, 139,999 to 2I >3°4, and 142,826 to 27,998, 
respectively ; but finally, after a six years' struggle, the 
people, by 165,846 to 132,720, accepted on April 2, 
1907, the council ordinances whereby great reforms 
were promised in the service under the private man- 
agement of the companies, and fifty-five per cent, of 
the net profits was to> go to the city treasury. 

In Canada this advisory system has been author- 
ized for cities by general provincial law in British 
Columbia June 21, 1902, and in Ontario June 2j, 
1903. In Victoria the referendum by-law was adopted 
by the council December 15, 1902. Either the council 
or a petition of ten per cent, of the voters may send 
questions to the annual municipal election in January 
for obtaining the opinion of the electors upon any 
question affecting the public welfare or any proposed 
innovation or alteration of by-laws. In 1903, 1907 
and 1908 the eight-hour day for city employees, the 
sale of liquors by retail in stores, and an increased 
water supply, were voted on. The opinion thus ex- 
pressed by the electors has been regarded by the coun- 
cil as a mandate for legislation in accordance there- 
with. 

In Toronto this advisory referendum has been 
used for questions like reducing the number of liquor 
licenses, paying salaries to the aldermen, and exempt- 

100 



DIRECT LEGISLATION IN AMERICA 

ing dwellings from assessment to the amount of seven 
hundred dollars. 

Augusta, Maine, has held special elections from 
time to time to secure the opinion of the people when- 
ever the importance of the issue has seemed sufficient 
to warrant such an election. The city clerk states that 
the authority is found in the clause of the city charter, 
section 34, which provides that general meetings of 
the citizens may be held to consult upon the general 
good and to instruct their representatives according to 
the right secured to the people by the state constitution 
— to be summoned by the mayor and aldermen upon 
the requisition of thirty voters. 

The constitution of Massachusetts, the parent state, 
contains a similar provision inserted in the original 
document of 1780 and repeated in the city charters. 
In the smaller cities, where the capacity of a hall bears 
a reasonable relation to the probable number of voters 
expected to attend, there have been numerous meet- 
ings to decide upon various important matters, but it is 
not known that any city has yet adopted Maine's sensi- 
ble expedient for changing a huge mass meeting into 
the modern method of booths and ballots. 

The constitutions of thirteen other states contain 
in their bill of rights declarations more or less similar 
in support of the right of the voters to give instruc- 
tions : Pennsylvania, North Carolina, New Hamp- 
shire, Vermont, Tennessee, Ohio, Indiana, Michigan, 
Arkansas, California, Oregon, Kansas and Nevada. 

In Delaware under the terms of the law, the peo- 
101 



THE INITIATIVE, REFERENDUM AND RECALL 

pie voted, on November 6, 1906, on the question, 
" Shall the general assembly provide a system of ad- 
visory initiative and referendum ? " Though the vote 
in the entire state was more than eight to one in its 
favor, the system was not authorized by the following 
legislature, which, however, with but a single dissent- 
ing vote in the senate, did establish for the cky of 
Wilmington, which had favored the proposition by 
10,548 to 747, a local initiative without the referen- 
dum. A petition of ten per cent, carries to the next 
election any question relating to the affairs of the city 
for an expression of opinion thereon. If it receives a 
majority vote and is within the corporate powers of 
the city government, it must be put into effect without 
unreasonable delay. Any member of the council, or of 
a commission, who neglects or refuses to perform the 
duty therein imposed commits a misdemeanor punish- 
able by fine, removal from office, and ineligibility to 
hold office for five years. This last provision should 
lessen the danger of representatives refusing to carry 
out the people's will ; but as far as it renders the action 
by the council merely an obligatory and perfecting 
formality, it would seem to approximate practically to 
the system of direct legislation. 

On June 1, 1907, at the city election, five ques- 
tions were submitted to the people : Shall the legisla- 
ture be memorialized for a home rule government for 
Wilmington with the initiative and the referendum 
(8,786 to 813) and for the New York system of as- 
sessing real estate (9,037 to 757) ? Shall ordinances 

102 



DIRECT LEGISLATION IN AMERICA 

be passed to require the publication of a complete finan- 
cial statement (8,324 to 569), and the bonding of as- 
sessors and collectors (8,346 to 663), and the observ- 
ance by the railroad companies using the streets of 
their franchise requirements for the repairs of the 
streets and improvements of their cars (8,302 to 504) ? 

The memorial for direct legislation will be pre- 
sented to the legislature when it convenes in December, 
but the vote emphasizes the desire of the community 
for local autonomy. The council has adopted ordi- 
nances for financial statements and for bonding, 
though the court has declared the latter at variance 
with the state law. The mayor's office states that the 
requirements of the last vote are those which the city 
has always endeavored to enforce, and it is compulsory 
for the street railways to live up to the provisions pre- 
scribed in their franchises. 

The grants by municipal councils of franchises for 
public-service utilities have been the cause of much 
anxious thought. How can they be wisely safe- 
guarded? The law has been asked to limit the 
maximum term and to create other restrictions. There 
is a more or less general movement to require that 
such grants be referred to a popular vote for ratifica- 
tion or for rejection through a people's veto. 

Iowa, which as early as 1872 had provided for a 
referendum on franchises for waterworks, to be fol- 
lowed by a similar regulation in 1888 on municipal 
lighting plants, established in 1899 an optional refer- 
endum and initiative with reference to all similar 

103 



THE INITIATIVE, REFERENDUM AND RECALL 

quasi-public services. Either the council may submit 
the question at a general or special election or the 
mayor must do so on the petition of twenty-five 
property-owners from each ward. Indiana, 1 in 1899, 
established an optional referendum along somewhat 
similar lines. 

In Ohio, by an act approved by Governor Harris 
April 15, 1908, no ordinances granting or extending 
a franchise to any street railway can become operative 
if within thirty days after its passage by the council 
there is a petition of fifteen per cent, of the voters, 
until it has been submitted to either a general or spe- 
cial election and has received a majority of the votes 
cast. 

In Cleveland, at a special election October 22, 
1908, a referendum invoked against the " security " 
franchise to the new railway company resulted in an 
enormous vote being cast, defeating the traction com- 
promise by 38,249 to 37,644. A fuller discussion of 
the long struggle in Cleveland will undoubtedly be 
found in the secretary's annual review of important 
events of the year. 

An amendment to the charter of Memphis, Ten- 
nessee, passed March 10, 1905, chapter 54, section 29, 
enacts that no quasi-public franchise shall be granted 
unless approved by the voters at, a general or special 
election if such submission has been demanded, within 
thirty days of its passage, by five hundred freeholders. 
— _ — 1 

» Shibley: "Municipal Affairs " Vol. VI, p. 785. 
104 



DIRECT LEGISLATION IN AMERICA 

Nebraska carried the system of its fuller recogni- 
tion of the people's right to originate or to veto ordi- 
nances of any kind when by chapter 32 of 1897, m 
effect on July 10, fifteen per cent, of the voters in any 
municipal subdivision of Nebraska are authorized to 
propose any ordinance which, unless adopted by the 
council, goes to the next municipal election. If 
amended by the council, both propositions go, and that 
one prevails which receives the larger vote, provided 
that between them they receive a majority of all the 
votes cast. A petition of twenty per cent, sends the 
question to a special election within thirty to sixty days 
after filing. This act is not operative till accepted by 
invoked against any ordinance within thirty days after 
being passed by the council unless declared to be 
urgent for the immediate preservation of the public 
peace or health, or unless items of the modern city 
appropriations and passed by a unanimous yea and 
nay vote. The same percentages, fifteen and twenty, 
determine with reference to the next regular municipal 
election occurring fifteen days after filing the petition 
or to a special election within fifteen to twenty days 
after filing the petition. The referendum may be 
the voters of the particular town or city. Lincoln 
adopted the provisions of this statute at the city elec- 
tion May 7, 1907, by 2,754 to 679, Mr. F. W. Brown 
being elected mayor by 2,632 to 2,590. Omaha ac- 
cepted this initiative and referendum statute Novem- 
ber 6, 1906, by 6,373 to 1,437, but no questions under 
it have since been brought to a popular vote. 
8 105 



THE INITIATIVE, REFERENDUM AND RECALL 

South Dakota was the first state to embody in her 
constitution the provisions for the initiative and refer- 
endum, adopting the amendment November 8, 1898, 
by 23,816 to 16,1483, whereby not more than five per 
cent, of the voters is to be required for either the 
initiative or the referendum. This applies to cities as 
well as to the state, and the legislature the following 
year made provisions, chapter 94, for carrying into 
effect the initiative and referendum in municipalities, 
fixing the requirement at five per cent, of the vote cast 
at the last election. 

Oregon adopted a state system of the initiative and 
referendum June 2, 1902, by a vote of 62,204 to 
5,668. The people took advantage of its provision for 
the initiative and amended the constitution at the 
biennial election June 4, 1906, by 47,678 to 16,735, 
and established local direct legislation, with not more 
than ten per cent, required to order the referendum 
or fifteen per cent, to propose any measure by the 
initiative in any city or town. 

Montana followed Oregon in a constitutional 
amendment for direct legislation November 6, 1906, 
with a vote of 36,374 to 6,616, and the legislature the 
next winter, by chapter 62, provided for the applica- 
tion in cities and towns of the referendum on the peti- 
tion of f^YC per cent, and of the initiative on eight per 
cent., with fifteen per cent, required in either case to 
demand a special election. 

Oklahoma in her new constitution adopted Septem- 
ber 17, 1907, which President Roosevelt in his procla- 

106 



DIRECT LEGISLATION IN AMERICA 

mation on November 16, 1907, declared to be " repub- 
lican in form," provides for a local referendum and 
initiative as well as a state system, and fixes the per- 
centage for cities at twenty-five. In the constitutional 
amendment establishing a state system of direct legis- 
lation, which Maine adopted September 14, 1908, by a 
vote of 51,991 to 23,743, section 21 provides that any 
city may establish the initiative and referendum 
through an ordinance ratified by a popular vote. 

In Illinois, under the public opinion law, a vote was 
taken at the state election in November, 1902, upon 
the popular petition for a local referendum law and 
resulted in a favorable vote of 390,972 to 83,377. 
This expression of opinion was ignored by the legisla- 
ture. A second vote was taken November 8, 1904, on 
a similar question of establishing a local five per cent, 
people's veto, and resulted in an even more over- 
whelming vote in its endorsement — 535,501 to 95,420. 
The people's representatives, however, have paid no 
attention to these and other similar expressions of the 
people's wishes. 

The greatest local development of direct legislation 
has been witnessed in the Pacific states. San Fran- 
cisco, under the home-rule provisions of the Califor- 
nia constitution, elected a board of freeholders De- 
cember 2y, 1897, to propose a new charter which was 
ratified at a special election May 26, 1898, by 14,386 
to 12,025, and having been approved by the legislature 
in 1899, chapter 2, went into effect January 8, 1900. 
It provided for an initiative on the petition of fifteen 

107 



THE INITIATIVE, REFERENDUM AND RECALL 

per cent, of the voters to apply either to ordinances 
or to charter amendments; and franchises for water- 
works or lighting plants, or ordinances for the pur- 
chase of land, must be referred to the next election. 
The same system was copied by Vallejo through a 
special election December 8, 1898 (chapter 5, 1899) 
and by Fresno, October 19, 1899 (chapter 9, 1901). 

The initiative and referendum system which is gen- 
erally thought of when reference is made to it is that 
of Los Angeles, adopted at a special election December 
1, 1902, by a vote of 12,105 *° I >955- The legislature 
ratified it in 1903, chapter 6. The system is elab- 
orated in much more detail and has generally served 
as the basis or model for other cities which have since 
adopted direct legislation. 

Under the initiative any proposed ordinance may 
be presented to the council. If five per cent, petition, 
it goes without alteration to the next municipal elec- 
tion. If fifteen per cent, petition and request a special 
election, it must be passed without alteration by the 
council within twenty days, and if vetoed by the 
mayor, repassed by the council or the council must 
call a special election at which it shall be submitted to a 
vote of the people. If the council passes it, the refer- 
endum may still be invoked against it. 

The basis for the percentage is the entire vote cast 
for mayor at the last preceding general election. The 
city clerk has ten days in which to examine the petition 
and ascertain whether it has been signed by the requi- 
site number of qualified electors. If found insufficient, 

108 



DIRECT LEGISLATION IN AMERICA 

the petition may be amended within ten days, after 
which the clerk has a further period of ten days to 
renew his verification as to its sufficiency and then 
present it to the council, or if again deficient to return 
it without prejudice to the person filing it. 

Any number of proposed ordinances may be voted 
upon at the same election, but not more than one spe- 
cial election shall be held in any period of six months. 
Any ordinance proposed by petition or adopted by 
popular vote can be amended or repealed only by vote 
of the people, though the council may submit at any 
succeeding city election propositions for repeal or 
amendment. 

The referendum applies practically to all ordi- 
nances except those declared to be urgent for the im- 
mediate preservation of the public peace, health or 
safety, and passed by a two-thirds vote of the council. 
No franchise grants can be construed as urgency 
measures. If a seven per cent, petition is presented to 
the council within thirty days from its final passage 
and approved by the mayor, the ordinance shall be 
suspended from going into operation and the council 
shall reconsider and entirely repeal the ordinance, 
or it shall be submitted to a vote of the electors at the 
next general election or at a special election called 
for the purpose, and shall not go into effect unless 
approved by a majority of voters voting on the same. 
Ten days prior to the election at which any ordinance 
is submitted to the voters the city clerk mails to each 
voter a printed copy of the ordinance with a sample 

109 



THE INITIATIVE, REFERENDUM AND RECALL 

ballot unless the council has ordered, in place of this, 
its publication in the official newspaper of the city in 
the same manner as ordinances adopted by the council 
are required to be published. 

The movement thus started made rapid progress. 
Sacramento, San Bernardino, San Diego and Pasa- 
dena held special elections on November 3, 1903, Janu- 
ary 6, 1905, January 27, 1905, and February 28, 1905, 
and adopted amendments to their charters, except in 
the case of San Bernardino, which proposed an en- 
tirely new charter, and the legislature gave its ap- 
proval in 1905, in chapters 12, 15, 11 and 20 of the 
current resolutions. 

Eureka, Santa Monica, Alameda, Santa Cruz, 
Long Beach and Riverside held elections on June 19, 
1905, March 28, 1906, July 18, 1906, January 22, 
1907, February 5, 1907, and March 1, 1907, to adopt 
new charters, which were approved by the legisla- 
ture in its session of 1907, in chapters 14, 6, 7, 9, 15 
and 25. 

In general these later charters followed pretty 
closely the model of Los Angeles. San Diego adopted 
the same percentages ; five and fifteen per cent, for the 
initiative for general and special elections respectively, 
and seven per cent, for the referendum. Sacramento 
and Riverside require ten per cent, for either the 
initiative at a general election or for the referendum. 
Eureka, Alameda and Santa Cruz raise the percentage 
for a special election for the initiative to twenty and 
vary the referendum slightly by having fifteen per cent. 

no 



DIRECT LEGISLATION IN AMERICA 

to keep an ordinance from going into effect before the 
election, while ten per cent, allows it to become opera- 
tive subject to its repeal ten days after an adverse 
popular vote. 

Long Beach, Santa Monica, Pasadena and San 
Bernardino raise the percentage still higher, to thirty, 
for the initiative at a special election, and in general 
have high percentages for the other requirements, 
ranging from ten to thirty. 

The following table may illustrate more graph- 
ically the various percentages required in the different 
cities : 

Initiative to Referendum 

General or Special Elections 

San Francisco 15 

Vallejo 15 

Fresno 15 

Los Angeles 5 15 7 

San Diego 5 15 7 

Sacramento 10 15 10 

Riverside 10 15 10 

Eureka 10 20 10-15 

Alameda 10 20 10-15 

Santa Cruz 10 20 10-15 

Long Beach 10 30 25 

Santa Monica 25 30 25-30 

Pasadena 30 10 

San Bernardino 30 30 

In view of the fact that the initiative and referen- 
dum have been put to comparatively rare use, it would 
seem distinctly unwise to raise the percentages so high 
as to make the system almost unworkable when for 
good reason there should be resort to it. The ten, 

in 



THE INITIATIVE, REFERENDUM AND RECALL 

twenty and ten formula may be a conservative and 
moderate one, though friends of the system in Los 
Angeles advise against increasing the percentages 
which prevail there of five, fifteen and seven. 

There are several variations on the general model. 
Pasadena allows the council to submit to the voters an 
alternative to the measure suggested by the initiative. 
Eureka, Alameda and Santa Cruz make twenty-five 
per cent, obligatory for an initiative petition against 
measures adopted by the electorate. Santa Monica 
does not allow a measure enacted by the people to be 
amended by the council before two years and forbids 
a measure to be submitted a second time except by the 
council or on a thirty per cent, petition. Santa Cruz 
allows a referendum on the same measure twice within 
a year only on a forty per cent, petition. Alameda 
permits a special election if the expenses are paid in 
advance by the applicant for a franchise or by other 
persons. Alameda, Santa Monica, Riverside and Sac- 
ramento provide that if the provisions of two or more 
measures, which are adopted at the same election, con- 
flict, then the measure receiving the highest affirmative 
vote shall control. 

The experience of Los Angeles throws light upon 
the value of direct legislation. There has been only 
one special election called under a fifteen per cent, 
initiative petition obtained by the prohibitionists, who 
tried to close all saloons; but in this they were de- 
feated. 

At the general election December 6, 1904, four 
112 



DIRECT LEGISLATION IN AMERICA 

ordinances were presented under the initiative to fix 
the limits of slaughter-house districts. Though con- 
fusing and conflicting, a local authority states that 
with keen intelligence and good judgment the people 
carried the best one by a handsome majority. About 
a year ago an additional franchise of great financial 
and strategic value, estimated to be worth a million 
dollars, was given by the council to the street railway 
corporation. Though rushed through to catch the peo- 
ple napping, under the threatened use of the referen- 
dum and the recall, the ordinance was revoked by the 
council. In the spring of 1908 the council granted 
for five hundred dollars another very valuable fran- 
chise to this same street railway company, and passed 
it over the veto of the mayor. A referendum petition 
was presented May 18, and the council having refused 
to repeal the ordinance, it was held up and referred 
to the next municipal election. Since the same city 
council had refused to pass an ordinance compelling 
the street railways to properly equip their cars with 
efficient fenders and run at a moderate rate of speed 
within the heart of the city, although the accidents 
and mortality were said to be greater proportionately 
than in any other city, the Voters' League secured 
over four thousand signatures to a petition calling for 
a special election, but before presenting it persuaded 
the council to adopt a satisfactory ordinance, which 
has since been the cause of saving many lives. Los 
Angeles claims a population of over three hundred 
thousand, which would perhaps rank it as the seven- 

113 



THE INITIATIVE, REFERENDUM AND RECALL 

teenth largest city in the United States, approximating 
the size of Washington. 

As the city in which the modern system of direct 
legislation was established first and has therefore been 
given the longest trial, it is interesting and instructive 
to see what testimony is offered as to its value. The 
first act of a committee lately sitting on charter re- 
vision was to resolve that the direct legislation pro- 
visions be retained intact without any increase of per- 
centages. 

Municipal Affairs, the organ of the Municipal 
League of Los Angeles, says that "nothing better has 
happened to Los Angeles than making the initiative, 
referendum and recall a part of its organic law. Large 
as was the vote in their favor, it would be many 
times larger should any attempt be made to eliminate 
them," and points out "that to a very large extent the 
value of the initiative, referendum and recall lies not 
in the fact that they are used, but that they may be 
used. They are the most powerful deterrent we have 
against bad officials and corrupt and incompetent law- 
making." 

Two years ago a circular letter addressed to the 
Christian people of California says that " civic reform 
and a revival of practical righteousness cannot be se- 
cured by individual or religious efforts alone, without 
regard to environment and practical means of work- 
ing. Our duty and responsibility as voters also re- 
quire us to secure a simple method by which Christian 
influence can be made most effective in promoting the 

114 



DIRECT LEGISLATION IN AMERICA 

public welfare. The best method yet proposed for 
non-partisan political action is direct legislation — 'the 
initiative and referendum." This circular was signed 
by ten leading ministers of the Methodist, Baptist, 
Presbyterian, Congregational and other denomina- 
tions, by Bishop T. J. Conaty of Monterey and Los 
Angeles, and by the president of Pomona College. 

The Republican mayor of Riverside; which adopted 
direct legislation last year but as yet has not brought 
any questions under it to a popular vote, writes that 
as an abstract proposition he thinks there is no room 
for adverse argument, but adds: "In my judgment 
if the lawmakers could be elected or appointed free 
from any obligation to either corporations, individ- 
uals, or parties and could then make the laws plain 
and do away with technicalities and give a quick serv- 
ice of the law to all alike, there would be very little 
agitation for what the strictly political persons call 
these insane and anarchistic provisions." As no 
American city has yet been able to accomplish the 
aforesaid " if," it is probable that these " insane and 
anarchistic provisions " — the best method yet pro- 
posed for non-partisan political action — will continue 
to be resorted to by those who desire to make Chris- 
tian influences effective in promoting the public wel- 
fare. 

In Alameda the council voted to spend the one hun- 
dred and fifteen thousand dollars, authorized by popu- 
lar vote for playgrounds, upon one tract only, at a 
very high price. The mayor, favoring three play- 

115 



THE INITIATIVE, REFERENDUM AND RECALL 

grounds in different parts of the city, vetoed the ordi- 
nance, and in the ensuing deadlock secured an initia- 
tive petition of twenty per cent, of the voters, by which 
this question was referred to popular decision at a 
special election May 2, 1908, when the mayor's posi- 
tion was sustained by a vote of 1,078 to 626, which 
carried every precinct. 

Inasmuch as the recall has been adopted very gen- 
erally as a part of the new system of direct legislation 
and is often referred to, as above, as one of the bul- 
warks of the people against misrepresentative gov- 
ernment, it may be well to consider briefly its present 
status in the above cities. Papers in the 1905 and 
1906 volumes of Proceedings of the League have de- 
scribed the principles of the recall as first devised for 
Los Angeles and later adopted in Pasadena, Fresno, 
San Bernardino and San Diego, and also the first use 
of it in Los Angeles in the removal of a councilman. 
Since then Santa Monica, Alameda, Santa Cruz, Long 
Beach and Riverside, as well as San Francisco and 
Vallejo, whose charters were adopted prior to this new 
movement by Los Angeles, have all inserted in their 
charters provisions for the recall. In four instances 
the required percentage has been raised from twenty- 
five to thirty or forty. The popular votes on its adop- 
tion have been strongly in its favor; the latest one 
being 22,945 to 5,597, in San Francisco in November, 
1907, where it was proposed by an initiative petition. 
The recall was invoked June 30, 1907, in two wards 
of San Bernardino against two councilmen. A petition 

116 



DIRECT LEGISLATION IN AMERICA 

for the recall was held by the court as valid in San 
Diego, but the term of the councilmen expired before 
the legal proceedings had been brought to a close. 

Oregon adopted on June i, 1908, by 58,381 to 
31,002, under an initiative petition, an amendment to 
her constitution whereby she became the first state to 
render every public officer subject to the recall by the 
voters of the state or of the electoral district from 
which he is chosen, not more than twenty-five per cent, 
of those voting for the justices of the supreme court at 
the preceding election to be necessary for filing the 
petition. The recall thus becomes available for all 
cities in the state. 

Portland, Oregon, by its charter adopted June, 1902, 
provides for a fifteen per cent, initiative to the general 
election and a fifteen per cent, referendum against all 
ordinances for franchises or for the municipal owner- 
ship of public utilities. At the election June 3, 1907, 
twenty-one questions were submitted to the voters, but 
of this seemingly excessive number sixteen were re- 
ferred by a vote of the city council and only five were 
due to initiative petitions. 

In Washington, under a law passed March 21, 
1903, a petition of fifteen per cent, of the voters ask- 
ing the adoption of a specified charter amendment, 
within the realm of local affairs, causes it to be sub- 
mitted at the next municipal election. A charter 
amendment was thus initiated in Seattle and adopted 
March 3, 1908, by 11,493 to 6,063, providing for the 
referendum on ten per cent, and for the initiative on 

117 



THE INITIATIVE, REFERENDUM AND RECALL 

twenty-five per cent, to go to the next regular elec- 
tion. Three petitions have since been presented but 
were found insufficient. The recall was adopted at the 
city election March 5, 1906, by 9,312 to 1,265. Ever- 
ett adopted a city charter November 26, 1907, contain- 
ing the initiative, referendum and recall by a vote of 
2,287 to 389. The percentages are twenty, ten and 
twenty-five respectively. Spokane has a provision for 
a fifteen per cent, referendum. 

Denver, under the home-rule provisions of the Col- 
orado constitution, elected its board of freeholders and 
ratified the proposed charter March 29, 1904. A 
twenty-five per cent, petition is required for either the 
initiative or the referendum and all franchises must be 
submitted to the vote of the qualified taxpaying voters 
and the expense of such submission paid in advance 
by the applicant. At the general election May 15, 
1906, under a petition with twenty thousand signatures 
an initiative ordinance was voted on which had been 
drafted by the Municipal Ownership League fixing 
maximum charges for gas, electricity and water, and 
providing for children's half-fare tickets on the street 
railways. 

The initiative and referendum have been given a 
great impetus through another movement which has 
aimed by establishing a commission form of govern- 
ment to lessen inefficiency, waste and corruption 
through concentrating power and responsibility upon a 
small body of men. The commission system was 
first authorized for Galveston in a charter granted 

118 



DIRECT LEGISLATION IN AMERICA 

by the Texas legislature in 190 1. A full account of 
this plan in its operation there may be found in the 
1906 and 1907 volumes of the League's Proceedings. 
The referendum is obligatory on proposed issues of 
bonds which must be approved by a majority of qual- 
ified taxpaying voters. The example of Galveston 
was followed by other cities in Texas. Houston in 
1905, and El Paso, Fort Worth and Dallas in 1907, 
obtained charters for a commission government, and 
Waco voted for it this spring. San Antonio in a 
new charter of 1903 provided for a ten per cent, refer- 
endum to apply only to franchises and suspending the 
operation of the ordinance until it has' been ratified by 
a majority of all voters. Houston introduces a varia- 
tion in that the referendum, on all franchises, is avail- 
able on the petition of the definite number of five hun- 
dred voters, while El Paso introduces a further varia- 
tion in making the referendum depend on four hundred 
voters who are taxpayers, or on the volition of the 
council itself. Fort Worth provides a twenty per cent, 
referendum and also a twenty per cent, recall. Green- 
ville and Denison in their 1907 charters for a council 
of mayor and two aldermen provide, the one for a 
referendum on franchises on the petition of one hun- 
dred voters, and the other for a twenty per cent, recall. 
Dallas follows the California model more closely in 
allowing an initiative to the general election on five 
per cent, with fifteen per cent, for a special election, 
and a referendum on franchises on a petition either of 
fifteen per cent, or of five hundred voters, and doubles 

119 



THE INITIATIVE, REFERENDUM AND RECALL 

the time within which to petition by making this period 
sixty days ; and also has a thirty-five per cent, recall. 

The final form by which the commission plan of 
government is at the present time being generally com- 
bined with direct legislation, and often with the recall 
of the Los Angeles type, has been made prominent by 
Des Moines. By a law passed March, 29, 1907, Iowa 
permits all cities in the state with a population exceed- 
ing twenty-five thousand to adopt by popular vote,, on 
a petition of twenty-five per cent, of the number vot- 
ing at the preceding city election, a charter which is 
set forth in the act. Des Moines adopted this charter 
June 20, 1907, by 6,044 to 4> x 43> an d it went into 
effect the following March. The initiative requires a 
ten per cent, petition for the general election and 
twenty-five per cent, for a special election. The refer- 
endum may be demanded by a twenty-five per cent, 
petition presented within ten days after the passage 
of the ordinance objected to. Twenty-five per cent, is 
likewise required to bring the recall into operation. 
At the election November 3, 1908, there were three 
referenda voted on and carried by decisive majorities. 
An interesting incident was the voting of the women 
on these questions in accordance with the terms of the 
charter. Cedar Rapids is the second city in the state 
to adopt a similar charter which went into effect April 
8, 1908, and according to the mayor has been univer- 
sally satisfactory. Sioux City voted against the ac- 
ceptance of a commission charter 567 to 533. South 
Dakota passed an act, chapter 86, in 1907, that is very 

120 



DIRECT LEGISLATION IN AMERICA 

similar to the one in Iowa, but the percentages are 
considerably lower. Cities are allowed to adopt the 
commission form charter at special elections held under 
an initiative petition of fifteen per cent. Both the in- 
itiative and the referendum are brought into use on 
a five per cent, petition, and a period of twenty days 
is allowed; while the recall requires fifteen per cent. 
Sioux Falls voted September 29, 1908, by 857 to 353, 
to incorporate under this charter. Lewiston was given 
a new charter by the Idaho legislature, March 13, 

1907, providing for a mayor and six councilors elected 
at large. The initiative petitions of five and fifteen per 
cent, call for action at general and special elections 
respectively. The referendum may be invoked within 
thirty days against franchises and real estate ordi- 
nances on petition of three hundred voters. The recall 
requires twenty-five per cent. Under the initiative a 
special election was held November 5, 1908, on the 
petition for an ordinance designed to secure prohibi- 
tion throughout the city. The ordinance was defeated. 

Kansas passed an act March 2, 1907, setting forth 
a commission form of government and permitting all 
cities of the first class to adopt it by a majority vote 
at a special election. A ten per cent, referendum is 
authorized on all franchise ordinances within sixty 
days after their passage and the entire expense of the 
city election must be paid in advance by the franchise 
applicant. Leavenworth adopted the act February 1 1 , 

1908, by 1,932 to 1,585, but Wichita rejected it, De- 
cember 3, 1907, by 3,266 to 1,218. 

9 121 



THE INITIATIVE, REFERENDUM AND RECALL 

In conservative Massachusetts two cities have blazed 
the way to direct legislation in the charters which they 
have just adopted. Haverhill was the first to accept 
the new law, chapter 574, by a vote of 3,066 to 2,242, 
at a special election October 6, 1908, following the 
model of Des Moines exactly in the various percentages 
required for the initiative, the referendum and the 
recall. Gloucester accepted chapter 611 on Novem- 
ber 3, 1908, by 1,762 to 1,400. Twenty-five per cent, is 
required for either the referendum or the initiative, 
and the recall is not authorized. 

Kansas City elected a board of freeholders under 
the home rule provisions of the Missouri constitution 
and adopted the charter prepared by them at a special 
election August 4, 1908, by a vote of 14,069 to 5,219. 
The recall which was submitted as a separate proposi- 
tion was lost, not receiving the necessary four-sevenths 
of the total vote, the figures being 4,099 to 2,724. All 
franchises are subject to a twenty per cent, referendum 
within sixty days and if a special election is called, the 
expenses must be borne by the person or corporation 
in whose favor the ordinance is enacted. A ten per 
cent, initiative petition can cause amendments to the 
charter to be submitted to a general or special election 
at which they must be accepted by a three-fifths ma- 
jority of those voting. North Dakota and Mississippi 
are other states that in 1907 (see chapters 45 and 108) 
provided for a popular initiative of ten per cent, to 
call for special elections to act on the question of 
adopting commission government charters in cities. 

122 



DIRECT LEGISLATION IN AMERICA 

Wisconsin, in chapter 670, authorizes in 1907 the same 
popular initiative of ten per cent, to bring before the 
voters of any city the question of accepting that act 
which forbids party designations on nomination papers 
or official ballots. 

At the other extreme from the commission form of 
government is the plan adopted at Newport, Rhode 
Island, June 6, 1907, by a vote of 1,804 to 1,161, 
where the representative council consists of the un- 
usual number of one hundred and ninety-five members 
elected from the five wards, with a mayor and five 
aldermen. One hundred electors may initiate a peti- 
tion for any ordinance or expenditure of money ex- 
ceeding ten thousand dollars and if the council refuses 
to pass it, a second petition of three hundred electors, 
or roughly six per cent., causes the proposition to be 
referred to special ward meetings of the qualified 
electors. All votes of the council requiring the expen- 
diture of a similar sum, in addition to the regular ap- 
propriations, are subject within seven days to a refer- 
endum petition of one hundred and fifty electors and 
must then be referred within thirty days to special 
ward meetings. 

Other cities are now considering the adoption of 
direct legislation under new charters, among them be- 
ing Milwaukee, Wisconsin, Berkeley, California, and 
St. Joseph, Missouri. No instance is recorded of any 
city rejecting direct legislation after having once 
adopted it and tried it. 

Special elections should not be held except when 
123 



THE INITIATIVE, REFERENDUM AND RECALL 

the questions to be presented are of extreme impor- 
tance and such as to arouse the community to exhibit 
its interest by a large vote. Under such conditions 
special elections are justifiable because they further 
tend to keep the questions out of politics and allow 
them to be settled on their merits. Therefore the per- 
centages requisite for summoning special elections 
should be comparatively high, while in other cases they 
should be reasonably moderate, and the time within 
which a referendum petition may be presented of suf- 
ficient length so as not to make the burden unreason- 
ably arduous or impracticable. Experience shows that 
neither the initiative nor the referendum is abused by 
an excessive number of petitions. 

Nearly every form or combination of forms in 
municipal government has been tried and hitherto has 
been more or less of a failure. Two fundamental dif- 
ficulties have been experienced. The masses of the 
voters have been unfortunately divided by allegiance to 
and consideration of national or state partisan organi- 
zations. The influential and property classes have too 
often had financial interests at stake in the quasi-pub- 
lic service corporations which have prevented them 
from considering municipal questions with an eye 
solely to the general welfare of a community. 

Direct legislation is of immense gain in concen- 
trating the attention of the voters upon measures and 
not men. Partisan consideration can no longer domi- 
nate. Instances are numerous where party candidates 
have won, but the measures they advocated or had 

124 



DIRECT LEGISLATION IN AMERICA 

passed have been defeated. Not only is the interfer- 
ence of national partisanship in municipal affairs very 
largely reduced and neutralized by the initiative and 
the referendum, but there is a simultaneous movement 
for its elimination by legislative enactment. The char- 
ters of the Des Moines character expressly forbid par- 
tisan designations upon the ballots. 



CHAPTER V 

THE REFERENDUM IN THE UNITED STATES 1 

Knowledge can be made useful as a basis for pub- 
lic action only by the general acceptance of principles 
which become thereby commonplace; and in politics 
one of the most trite among these is the doctrine that 
the value of an institution depends upon its harmony 
with its environment. The referendum, or submission 
of laws to direct popular vote, has grown up in com- 
munities whose other institutions have differed in many 
respects from those of England. To point out those 
differences and explain their effects would require more 
space than the pages of a review will allow. In fact, 
to compress so large a matter into so small a room it is 
necessary to limit one's horizon still farther by exclud- 
ing all subjects not strictly germane to the present dis- 
cussion in England, such as the local referendum, that 
is, the popular vote of the people of a city or district 
upon a question of purely municipal character or upon 
the application of a general act to that district alone. 

The referendum, in the restricted sense of a sub- 

» By President A. Lawrence Lowell. Reprinted by permission 
from The Quarterly Review, June, 191 1. 

126 



REFERENDUM IN THE UNITED STATES 

mission to a vote by the whole electorate of measures 
passed by the representative body, has been introduced 
in three different forms at three different periods of 
American history. The periods have to some extent 
overlapped, yet the movements have been so far dis- 
tinct that it is convenient to describe them separately; 
and, in fact, we can recognize three notable waves of 
the movement for direct popular legislation, each rising 
higher than the last. 

In New England, before the Revolution, the mem- 
bers of colonial assemblies were often treated as dele- 
gates appointed to confer together and report to their 
constituents; and after the end of the colonial period 
there lingered a kindred practice of instructing the rep- 
resentatives in town meeting. But leaving aside these 
early types of democracy, the modern referendum first 
appears in America in the form of submitting state 
constitutions to the people for ratification. This was 
done in Massachusetts in 1778, when the proposed 
" Frame of Government " was rejected by the voters ; 
and again in 1780, when the constitution that is still 
in force in the state was adopted. New Hampshire 
followed her example immediately afterwards, submit- 
ting to the people one constitution which was rejected 
in 1779, and another which was ratified in 1783. It 
was nearly forty years before the procedure was copied 
elsewhere, but the custom then spread rapidly; and 
after 1820 almost all new state constitutions were sub- 
mitted to popular vote. The uniformity of practice 
has been seriously interrupted only on two occasions, 

127 



THE INITIATIVE, REFERENDUM AND RECALL 

each the result of wholly exceptional conditions. The 
first occurred when the southern states, during the 
stress of secession and reconstruction, dispensed with 
the practice; the second, when several of these states 
followed this precedent in their recent effort to dis- 
franchise the negroes. The situation in the last of 
these cases was anomalous. To submit to the old 
electorate the question whether it would withdraw the 
suffrage from a large part of its members was clearly 
to imperil the result ; and hence in several of the states 
a convention framed and adopted a new constitution 
without a popular vote. The action showed no distrust 
of the general principle; and it is safe to regard the 
doctrine that a state constitution must be ratified by 
a vote of the people as a firmly established tradition in 
American public life. 

The practice has been applied not only to the re- 
vision of the instrument as a whole by the adoption 
of a new constitution, but also to what the Swiss call 
a partial revision — that is, the adoption of a particu- 
lar amendment ; a provision empowering the legislature 
to enact amendments subject to ratification by popular 
vote being embodied in the constitution itself. Such a 
provision first appeared in Connecticut in 1818, and 
was copied by other states until it became almost uni- 
versal. When we remember that the constitutions, 
especially among the newer states, have been growing 
more and more elaborate, including many subjects nor- 
mally within the range of current legislation, it is evi- 
dent that the constitutional referendum covers a very 

128 



REFERENDUM IN THE UNITED STATES 

wide field. Still it is a different thing from a general 
referendum on ordinary laws, especially in America, 
where the stream of statutes is swollen to such a tor- 
rent that the arts of statesmanship have been largely 
applied to the construction of dykes to prevent it from 
flooding the country. Since the matters comprised in 
the constitutions have been those that were deemed 
relatively permanent, the popular vote on constitutional 
questions furnished by itself imperfect evidence of the 
way in which a general referendum would work; and 
yet it is only in this form that the referendum in the 
Unifed States has endured sufficiently long, and has 
prevailed widely enough to justify conclusions drawn 
from experience. 

In measuring the value of any popular institution 
which is intended to bring public opinion to bear upon 
political affairs, we may properly ask ourselves four 
questions: whether it has really any substantial effect 
or is an empty form ; whether it fairly expresses public 
opinion ; whether the opinion so expressed is wise ; and 
whether after long experience it retains general respect. 

That the constitutional referendum has a substan- 
tial effect there can be no doubt, for amendments re- 
ferred to the people are often rejected. It has been 
asserted that legislators sometimes pass on to the popu- 
lar tribunal amendments in which they have little faith, 
in order to rid themselves of uncomfortable political 
questions; but such cases can form only a small part 
of the measures rejected by the people. A few figures 
quoted by Dr. Oberholtzer are conclusive upon the free- 

129 



THE INITIATIVE, REFERENDUM AND RECALL 

dom with which the voters refuse their assent to meas- 
ures they do not like. He tells us that the Legisla- 
tive Bulletin of the New York State Library for the 
years 1895 to 1897 gives, for all the states, one hun- 
dred and ten constitutional amendments submitted to 
popular vote, of which fifty were ratified and sixty 
rejected. In an earlier periodical, covering the six 
years from 1886 to 1891, he finds one hundred and 
sixteen amendments so submitted, fifty-four of them 
being accepted and sixty-two rejected. Whether com- 
plete statistics for a century would show that more or 
less than one-half of the amendments to state consti- 
tutions had survived the ordeal of a popular vote, it 
is certain that the proportion rejected would prove 
the ballot to be no empty form, but a highly effective 
instrument for defeating proposed changes in the fun- 
damental law. 

How far the result of the popular vote on legisla- 
tive proposals fairly expresses public opinion is a much 
more difficult question, on account of the smallness 
of the vote cast. The vote on measures is always less 
than that for the principal public officers to be elected 
at the same time. As Dr. Oberholtzer remarks, only 
" about a half of all those who know their own minds 
respecting candidates seem to care anything about 
measures." Legally those who do, not vote are neg- 
lected, and that is the only way in which the referen- 
dum can practically be used; but when twenty-six per 
cent, of the people vote for a measure and twenty-four 
per cent, against it, one would be rash in making any 

130 



REFERENDUM IN THE UNITED STATES 

positive assertion about public opinion on the matter. 
The experience of Massachusetts — a conservative 
commonwealth with a good legislature, whose people 
have practised the art of popular voting on constitu- 
tional questions longer than any other community too 
large to meet in a general assembly — may be of inter- 
est on the two questions already discussed. Since the 
adoption of the constitution of 1780 there have been 
submitted to the people fifty-eight questions, of which 
thirty-nine were answered in the affirmative and nine- 
teen in the negative. 1 The rejection of one-third of 
the "proposals shows that the people had a mind of 
their own; but the variation in the interest they ap- 
peared to take in the different measures is surprising. 
The votes cast at the referenda have varied from a num- 
ber slightly in excess of those polled for the candidate 
for governor in the same year down to one-thirtieth 
part thereof, two measures being actually carried by 
less than 4,500 affirmative votes, although nearly 170,- 
000 were cast in the election of the governor. On ten 
measures the number of votes polled was less than 
one-fifth of the number cast in the election; on forty- 
two measures it was less than two-thirds ; and it must 
be remembered that only seventy-five per cent, of the 
registered voters cast their ballots even for governor. 
In this connection it may be observed that the vote is 
almost always larger on measures which have been 



' One of those rejected relating to the introduction of woman 
suffrage was merely of an advisory nature. 

131 



THE INITIATIVE, REFERENDUM AND RECALL 

rejected than on those which have been adopted. In 
only two instances of acceptance, indeed, has the total 
vote exceeded two-thirds of that cast in the election 
for governor; and no constitutional amendment has 
been ratified by a majority of the electorate. In cases 
of rejection, however, the vote has usually been close, 
whereas in cases of adoption the margin has commonly 
been considerable ; so that a small total vote may have 
signified not only apathy but in part also confidence 
in the result. 

The third question — whether the popular opinions 
expressed by the constitutional referendum have been 
wise or not — is not a simple one. The answer will 
depend very much on the prepossessions of the person 
who makes it; but a survey of the fifty-eight popular 
votes which have taken place in Massachusetts since 
1780 leaves the impression that almost all those of 
doubtful wisdom were either in accord with the best 
thought of the time or were afterwards reversed. 

On the final question — whether the referendum on 
constitutional matters in the United States retains gen- 
eral respect or not — there can be no doubt; for the 
institution is as deeply rooted in public esteem as ever, 
and no one would seriously propose its abolition. 

The constitutional referendum, of which I have 
been speaking, was a natural result of the attempt to 
place the fundamental law on a different basis from 
ordinary legislation. The next development of direct 
popular action in lawmaking, not very different from 

132 



REFERENDUM IN THE UNITED STATES 

the first in principle or in its effects, arose from a prac- 
tical demand for a check upon the legislature when 
dealing with matters that involve peculiar temptations 
or the pressure of local or other interests. With this 
object a clause was inserted in the constitutions of sev- 
eral states providing that the action of the legislature 
upon certain specific subjects should not be valid unless 
ratified by popular vote, although the other formalities 
of constitutional amendment were not required. The 
practice began about the middle of the last century, 
and has been applied to the selection of sites for state 
capitals and public establishments, to the contracting 
of state debts, to taxation in excess of a fixed amount, 
to the creation of banks, to the extension of the suf- 
frage, and to a few other matters. It has been used 
mainly, although not exclusively, by the newer states, 
and was devised to meet difficulties keenly felt, rather 
than as an expression of any general political principle. 
While it has been retained in those communities where 
it arose, it may be regarded as the product of immature 
conditions, for it has shown no marked tendency to 
spread to other parts of the country or to expand over 
new subjects. 

In connection with these constitutional provisions 
for the reference of particular matters to popular vote 
we must speak of the attempt occasionally made by 
legislatures, in the absence of any such provision, to 
refer some perplexing question to the people. The 
procedure might perhaps have become common had it 
not been checked by the courts, which have held that 

133 



THE INITIATIVE, REFERENDUM AND RECALL 

without constitutional authority a legislature cannot 
divest itself of responsibility for legislation by shifting 
it on to the shoulders of the electors. It can, of course, 
consult them by means of an informal vote, and this is 
sometimes done ; but it cannot make that vote decisive 
upon the enactment of a statute. No such obstacle 
would, of course, arise in the case of the British Par- 
liament. 

The third and most comprehensive movement for 
a referendum is very recent. It takes the form of a 
general provision in the constitutions that, upon the 
petition of a certain number of citizens, any law, not 
declared urgent by the legislature, shall be submitted 
to popular vote. Unlike the two earlier phases which 
were native in origin, growing out of purely indigenous 
ideas and conditions, this last is a conscious imitation 
of Swiss institutions; and it has usually been coupled 
with the Swiss initiative, whereby a fixed number of 
citizens can propose a law and require a popular vote 
thereon. The movement has had a strongly theoreti- 
cal tinge, and has been pushed by associations formed 
to advocate it on abstract principles. Nevertheless, the 
real force that has given it momentum with the public 
and won its victory in a number of states has been 
not so much faith in a democratic creed as a dissatis- 
faction with the existing legislatures, a conviction that 
they are too largely under the control of party ma- 
chines allied with moneyed interests. 

The referendum in this general form was adopted 
first by South Dakota in 1898, and in the dozen years 

134 



REFERENDUM IN THE UNITED STATES 

that have passed since that date by Utah, Oregon, Ne- 
vada, Montana, Oklahoma, Maine, Missouri, Arizona, 
Arkansas, Colorado and New Mexico — twelve states 
most of which lie in the newer and less populous parts 
of the country and have limited the sessions of their 
legislatures to very brief periods. As yet it is too early 
to say what the effect of the institution will be. A gen- 
eration must pass before that can be determined; but 
the use that has actually been made of the general ref- 
endum in the few years during which it has been in 
operation is not the less interesting. 

Although direct popular legislation was established 
in South Dakota a dozen years ago, it was used first, 
and has been used far more freely, in Oregon. No 
other state, indeed, made any use of it until 1908; and 
in Oregon the popular votes under the new provisions 
have been three times as numerous as those in all the 
other states combined. But in making this statement 
it is necessary to discriminate between the different 
kinds of direct legislation. In Switzerland the initia- 
tive has been used little, and rarely with success ; and, 
save in Oregon, that has been the case in the American 
states. As yet they have put it in operation only half 
a dozen times ; and the measures proposed have always 
been rejected. But in Oregon it has been used in the 
last eight years for no less than forty-eight measures, 
including constitutional amendments; and twenty-five 
of them have been adopted. The referendum, on the 
other hand, has been hitherto less of an Oregonian 
monopoly. That state has referred to popular vote, 

135 



THE INITIATIVE, REFERENDUM AND RECALL 

either by petition or by the action of the legislature 
itself in accordance with a power conferred upon it, 
nine statutes, whereof four have been ratified and five 
rejected; while in the other states thirteen acts have 
been so referred, of which four have been ratified 
and nine rejected. 

With the enormous mass of legislation in America 
one feels impelled to ask to what lengths direct legisla- 
tion will ultimately grow, and whether a people that 
has any other occupation in life will be able to carry 
it on intelligently. More than half of these popular 
votes occurred last autumn, with the result that in Ore- 
gon the people voted upon thirty-two different meas- 
ures, besides voting on candidates for office; and in 
South Dakota, where the measures, although less in 
number, were printed in full, the ballot was six feet 
long in small type. Perhaps for this reason the people, 
except in Oregon, rejected almost everything presented 
to them. In Oregon, however, to their credit be it 
said, they were discriminating, accepting nine and re- 
jecting twenty-three of the measures submitted. These 
ranged over the whole ground of legislation — liquor 
laws, taxation, employers' liability, woman suffrage, 
state railroads, good roads, nominations for office, pro- 
portional representation, reform of juries and judicial 
procedure, fishing in Rogue River, the salary of a 
judge, eight separate bills for creating as many new 
counties, and sundry other matters — a programme that 
might overtax Parliament for a decade. The average 
vote on all these measures was nearly three-quarters 

136 



REFERENDUM IN THE UNITED STATES 

of that cast for governor at the same time. Equity, 
the periodical devoted to the cause of direct legislation, 
asks : " Now do you not think that Oregon, with her 
thirty-two measures, stands vindicated ? " Truly the 
citizens of Oregon are a remarkable people, and the 
institution they have brought forth is an infant Hercu- 
les; but whether or not he has shown wisdom in his 
cradle, and whether his presence has had a salutary 
influence upon the state economy, are questions on 
which the doctors disagree. 

An effort is now being made to extend direct leg- 
islation to national affairs. This has not hitherto been 
done even in the case of amendments to the federal 
constitution, because that instrument was originally 
framed by delegates from the several states, was 
adopted by the states, and provided for the ratification 
of amendments by three-quarters of the states. What- 
ever theory may be held of the national sovereignty, 
there can be no doubt that historically the federal con- 
stitution was based upon the assent of the states; and 
the practice has never been changed. This can readily 
be understood if one considers the improbability that 
any plan for a closer federation of the British Empire 
or any future modification thereof, would be submitted 
for ratification to a popular majority of the Empire as 
a whole, without regard to the opinion of the com- 
ponent parts. Before a referendum, either on consti- 
tutional amendments or on ordinary legislation, can be 
applied to national questions in the United States, the 
principle must make a great advance in public favor. 
10 137 



THE INITIATIVE, REFERENDUM AND RECALL 

Much has been said in England about the expense 
of a referendum; but on this point American experi- 
ence is of little value, both because the total cost of 
a poll differs in different countries, and because in the 
United States a referendum is habitually combined 
with an election of public officers, American elections 
are periodic, public officers of some kind being chosen 
throughout a state as a rule every year ; and the popu- 
lar vote upon a legislative measure is usually taken at 
the same time. In such a case the expense of the ref- 
erendum is merely that which is entailed by bringing 
the matter before the people ; but this varies greatly. 

As to the bearing of American experience of the 
referendum upon the solution of English problems it 
is difficult to speak. There is in England no sharp dis- 
tinction between constitutional and other measures, and 
hence no clearly defined class of laws which would be 
regularly submitted to popular vote; and yet it is on 
this condition that the results of the American consti- 
tutional referendum are based. Those results have 
already been described, while the optional or occasional 
referendum on ordinary laws has not endured long 
enough in America to justify any conclusive verdict, 
even if such a verdict would be decisive in England. 
The importance of a referendum there must depend 
chiefly on its indirect effects, its influence upon the 
responsibility of the cabinet, upon the relation of min- 
isters to the majority in the House of Commons, upon 
the stability of the party system; in short, upon the 
whole structure of English parliamentary government. 

138 



CHAPTER VI 



BIRECT LEGISLATION AS AN ALLY OF REPRESENTATIVE 
GOVERNMENT * 



Our fathers founded this government in order to 
secure for the people — all the people — the blessings 
of life, liberty and happiness. They devised institu- 
tions and machinery to that end. 

To-day, after the lapse of a century and a quarter, 
combinations of power have grown up under these 
institutions in the face of which, for multitudes of 
our population, life is precarious, liberty practically 
despaired of, and happiness, except of a kind enjoyed 
by the Roman proletariat or the plantation slave, un- 
known. We know that no one would be more impatient 
of such conditions than our revolutionary forefathers, 
and no one more resolute in seeking a remedy. Honor 
to their memory requires us to scrutinize their work, 
and to modernize it if necessary, just as they modern- 
ized their inherited institutions. 

x By Professor Lewis Jerome Johnson, based upon an article in 
the New England Magazine, June, 1909, and the Chicago Public of 
July 30,1909, and later reprinted by the Massachusetts Direct Leg- 
islation League. 

139 



THE INITIATIVE, REFERENDUM AND RECALL 

Accordingly we turn first to the spirit and purposes 
underlying our institutions. We find nothing to criti- 
cise, even after all this time. We can suggest no 
improvements in this quarter. Even now we are in- 
spired with a new enthusiasm by the ideals expressed 
by our fathers in founding this republic, the ideals so 
impressively reaffirmed by Lincoln at Gettysburg. 

We turn next to the details of their governmental 
machinery. Little is left of their industrial methods 
and institutions, and perhaps their political devices too 
are out of date. If they are, possibly it is not too late 
to supplement them or replace them with better. The 
legislative machinery underlies all else. We observe 
that our lawmaking is entrusted to representative bod- 
ies. The make-up of these bodies is, nominally at 
least, under public control, but the output (except 
amendments to state constitutions) is not even nom- 
inally under public control, except as such control may 
be exerted through pressure upon individual representa- 
tives. When we consider the extent to which such 
pressure is exerted to-day by the greedy and highly 
organized few, rather than by the merely normally 
interested and unorganized many, a legislative system 
which may have been safe once comes to look decidedly 
defective. 

Further reflection convinces us that this lack of 
adequate popular control of results is not only a defect 
but is the fundamental defect in our legislative mech- 
anism. Its correction is therefore essential, and is log- 
ically the first step in the modernization of our politi- 
co 



ALLY OF REPRESENTATIVE GOVERNMENT 

cal machinery. This done, improved legislation is as- 
sured as fast as the majority can agree upon it. This 
done, all unnecessary and undesirable obstacles to prog- 
ress will have been minimized. Until this is done, we 
have little reason to hope for permanently better con- 
ditions, except at an utterly unreasonable cost in effort 
and delay. The importance of concentrating attention 
upon this issue is manifest. 

The next question is, how shall the public get 
adequate control of results? The answer is, we must 
assert our natural right to revise the work of our rep- 
resentatives. We must do this revising ourselves. 
There is no one else to do it. To do it we must sup- 
plement the existing legislative machinery with a work- 
able, orderly, and properly guarded contrivance to en- 
able us to enact laws, to veto them, to amend them or 
to repeal them by direct popular vote over the head of 
legislatures and city councils, in the instances when 
these bodies fail to meet the public will. In other 
words, we must considerably extend the practice of 
direct legislation by the people, already familiar to us 
in the New England town meeting, and in the popular 
ratification of amendments to state constitutions. 

Fortunately the way to do this has been devised 
and tested and has met expectations on a city-wide and 
state-wide scale. It involves two devices developed 
in the last few decades, the initiative and the referen- 
dum, now included under the single term direct legis- 
lation. 

The initiative enables the people to enact desirable 
141 



THE INITIATIVE, REFERENDUM AND RECALL 

measures by direct popular vote, when such measures 
have been or are likely to be ignored, pigeon-holed, 
amended out of shape, or defeated by the legislature. 
Measures passed in this way may be entirely new laws, 
or they may, of course, amend or repeal existing laws. 

The referendum enables the people, by direct popu- 
lar vote, to veto recent enactments of their representa- 
tives. 

The initiative corrects sins of omission. 

The referendum corrects sins of commission. 

The initiative is set in operation by volunteer 
groups of citizens— civic, labor, or mercantile organi- 
zations — who draw up laws which they think good for 
themselves, or the public, or perhaps both. If they can 
get a certain moderate percentage 1 of the voters of 
the city or state to sign the requisite petition the meas- 
ure goes to the council or legislature, and if this body 
refuses to adopt it within a specified time without 
amendment, the measure must be transmitted un- 
changed to the people for their decision. If the leg- 
islative body thinks it can produce a better enactment 
to the same effect, it may draw it up and send it to 
the people, with the other, as a competing measure. 
The voters then choose between them, or reject both. 
In some jurisdictions, notably Oregon, initiative meas- 

J The number of signatures required in these petitions ranges, in 
different states from five to eight per cent, of the voters for initia- 
tive petitions for ordinary laws; from eight to fifteen per cent, for 
initiative petitions for constitutional amendments; and from five 
to ten per cent, for referendum petitions. The usual percentages 
are eight for initiative, and five for referendum petitions. 

142 



ALLY OF REPRESENTATIVE GOVERNMENT 

ures go directly to the people without previous sub- 
mission to the legislature. Other modifications in de- 
tail may be expected as time goes on. 

The referendum, likewise upon petition, brings 
newly passed legislation to the popular tribunal for 
veto or confirmation. 

The need of interference with the work of the rep- 
resentatives is greatly reduced by the mere existence 
of the system, and the number of laws actually coming 
to popular vote is a small fraction of the whole. 

Direct legislation is likely to result, before being 
long* in operation, in the establishment of the recall, 
which is the properly guarded power of removal of 
unsatisfactory officeholders before the expiration of 
their terms. Thus the people gain the power of re- 
moval, the logical supplement to their already exist- 
ing power of election. 

The recall, though obviously a device indispensable 
for popular control and usually, in city charters, es- 
tablished simultaneously with direct legislation, will 
not be discussed further here. It should be looked 
upon as one of the numerous desirable but subordinate 
measures, like preferential voting, direct nominations, 
and the short ballot, which may safely be left to be 
gained by subsequent enactment in the larger jurisdic- 
tions like our states. This is strikingly true in Massa- 
chusetts where the recall has been suggested, if not 
actually authorized by the constitution since its adop- 
tion in 1780, as will be seen from article VIII of that 
constitution, and could, possibly, unlike the initiative 

143 



THE INITIATIVE, REFERENDUM AND RECALL 

and referendum, be made operative without constitu- 
tional amendment. 

The initiative and referendum, as now advocated, 
carry with them, of course, adequate and systematic 
means, independent of the newspapers, of furnishing 
each voter the full text of the measures to be voted on ; 
the condensed form in which they will be printed on 
the ballot; statement of the reasons for and against 
each measure; and the names of those behind each 
proposition. 

In Oregon, the secretary of state edits this informa- 
tion and mails it in pamphlet form to each voter in the 
state fifty-five days before election. At least eight 
weeks have elapsed by that time since the circulation 
and filing of the petitions. This is found to afford 
ample time for deliberation and discussion, and the 
pamphlet provides an adequate basis for decisions. 
Those who wish to insert arguments in this pamphlet 
pay the cost of paper and printing — some eighty dol- 
lars per page — and the state bears the rest of the cost 
of the pamphlet and its distribution. In initiative cases, 
supporting arguments are accepted from none but duly 
accredited representatives of the friends of the meas- 
ure ; any one who will pay the cost, however, may in- 
sert arguments against such a measure. In referendum 
cases arguments upon either side .may be inserted by 
any one willing to pay the cost. In the election of 
June, 1 910, when thirty-two measures were acted 
upon by the electorate, the state pamphlet was a docu- 
ment of two hundred octavo pages. Oregon voters 

144 



ALLY OF REPRESENTATIVE GOVERNMENT 

protect themselves still further from false or mislead- 
ing campaign literature by a provision of their admir- 
able Corrupt Practices Act — a comprehensive measure 
based on English practice, which came from the peo- 
ple by the initiative — which prescribes a heavy penalty 
for circulating political literature without the names of 
its authors and publishers. 

In Oklahoma, there is a state pamphlet for inform- 
ing voters as in Oregon, but with some interesting dif- 
ferences in detail. In Oklahoma, as is proposed in 
Massachusetts, initiative measures go first to the legis- 
lature. Hence all popular voting is upon measures 
which have had recent legislative action. A joint com- 
mittee of house and senate is therefore naturally called 
upon to prepare the arguments supporting the legisla- 
ture's position. The opposing argument is drawn up 
by a committee representing the petitioners. The ar- 
guments for each side of each measure is restricted 
by the Oklahoma law to two thousand words, one- 
fourth of which may be in answer to opponents' argu- 
ments. The direct argument on each side is prepared 
and submitted to the secretary of state, who transmits 
it to the opposing side to serve as the basis for the 
rebuttal just mentioned and thus complete the argu- 
ment. These arguments on all the questions are then 
assembled in the state pamphlet and distributed to all 
the voters of the state a suitable number of weeks 
before the election. The cost of printing and distri- 
bution is borne by the public treasury. The Oklahoma 
plan has some striking merits. It requires the legisla- 

145 



THE INITIATIVE, REFERENDUM AND RECALL 

ture to state the reason for the action which it has 
taken. Doubtless this reason is often good and suffi- 
cient, but perhaps more certainly so when the law- 
makers know in advance that they may have to de- 
fend their position. The legislature's views on the 
measure should be of great value to the voters. 

More important still, it ensures the presentation 
of a negative argument. Experience in Oregon has 
already shown that a negative argument is not always 
forthcoming when left to be supplied by volunteers. 
A campaign of silence is sometimes wisely preferred 
by interests at whom an initiative measure is aimed 
to the revelation of weakness which would result from 
a formal attempt at defence. They well know that 
voters are likely, from sheer force of habit, thought- 
lessly to concede more in the defence of a long-estab- 
lished wrong than its beneficiaries would dare claim 
for it. The Oklahoma plan of informing voters re- 
quires each side to show its hand. Bluffing is elimi- 
nated. Privilege has to come out in the open and state 
such case as it has. Silent contempt is not permitted 
to do duty as argument. Both the Oregon and the 
Oklahoma systems of disseminating information do 
much to forestall the misleading of voters through the 
newspapers. Some expense is involved, but this point 
is not apt to be pressed except by those opposed to the 
whole system on other grounds. The body of voters 
well understand that one bad law or one carelessly 
granted franchise may cost the public in actual dollars 
and cents many times the cost of the state pamphlet. 

146 



ALLY OF REPRESENTATIVE GOVERNMENT 

Supplemented by the initiative and referendum, to 
serve as a permanent background and for application 
when called for, the representative system will gradu- 
ally but surely enter upon a period of honor and use- 
fulness hitherto never surpassed and probably never 
equaled. Relieved of the unnatural excess of power 
under which they now stagger and sometimes fall, legis- 
lative bodies will cease to be attractive objects for brib- 
ery and secret influence. Log-rolling will greatly dim- 
inish. The power of bosses and rings will be under- 
mined. Seats in the legislatures will then begin to be 
unattractive to grafters. At the same time they will 
become more attractive to high-minded, public-spirited 
citizens. There will be a fairer chance that a man 
clean when elected will stay clean. It will make it safe 
to reduce the size of legislatures and to diminish 
greatly the number of elective officers. The party ma- 
chines and bosses once permanently out of control, we 
may reach the point of competing successfully with the 
corporations in attracting the best young talent to the 
public service. 

With direct legislation in vogue, it is not necessary 
to retire a faithful legislator to express disapproval 
of some of his measures. The electorate, while re- 
turning the man to office, can overrule the measures 
with no more reflection on his honor or usefulness 
than is involved in the overruling of a lower court by 
a higher. Honest and able representatives are hence 
likely to be repeatedly reelected. Long tenure is as 
valuable to public as to private business. Where the 

147 



THE INITIATIVE, REFERENDUM AND RECALL 

people have been in control long enough for this result 
to show, as in Switzerland and in the New England 
towns, they are seen to act upon this principle. In 
Switzerland it is rare that a new member appears in 
a legislative body except to fill a vacancy due to death 
or voluntary retirement. In New England towns it 
is common for faithful officials to be retained in office 
practically for life, their annual reflections being fre- 
quently uncontested. With a seat in the legislature 
thus robbed of its charms for all but the public-spirited, 
and with reelection practically assured to men of 
proved merit, real legislative experts in good number 
may gradually be developed, and may yield good 
service. 

In view of such untested possibilities, it is beside 
the mark to wonder whether representative govern- 
ment is a failure. We begin to realize that it has not 
yet been fairly tried, at least not in recent years. We 
realize that our legislators have been working under 
almost intolerable conditions. They have been con- 
tinually exposed to temptations that no ordinary man 
ought to be asked to face, and it is a tribute to human 
nature that so many of our legislators have stayed 
straight. With the initiative and referendum in force 
legislators will have all the power that is ever ac- 
corded to representatives and agents in business, 
which is all that is wholesome or attractive to worthy 
citizens of a democratic republic. That final enacting 
power is far from essential to the dignity of a legisla- 
tive body is shown by the universal respect in which 

148 



ALLY OF REPRESENTATIVE GOVERNMENT 

our American constitutional conventions have always 
been held. 

While a sufficiency of power is thus left with the 
representatives, a salutary increase of responsibility 
is thrown upon the voter. It brings him, to some pur- 
pose, into closer touch with great affairs. It enables 
him to vote for measures apart from men, and for men 
apart from measures. He can begin to assume the 
stature of a man, to become a sovereign in fact as 
well as in fancy. It will enable him to settle some- 
thing at an election besides the party label of office- 
holders, which in turn settles little except which fac- 
tion shall dispense the spoils of office. For we know 
only too well that platforms are " merely to get in on, 
not to ride on." Even if they were expected to be 
observed, platforms are composites which rarely rep- 
resent, except in the roughest way, the views of any 
one thoughtful voter. 

The new task proposed for the voter, though in- 
spiring, is relatively simple. It differs widely from 
legislation in the ordinary sense. The originating and 
drafting of bills can manifestly never fall as a burden 
on the mass of the voters. For this service the com- 
munity can always command ability as wise, as disin- 
terested and as practiced in legislation as any who now 
do such work. The average voter's part in the work 
is deliberation, discussion and the registry of his de- 
cision. This is no new task for him; the only novelty 
is in having a chance to do it intelligently, and to see 
his decision go into effect. 

149 



THE INITIATIVE, REFERENDUM AND RECALL 

The voter, going into the booth, has known for 
months just what is coming up and in just what form 
it is coming up. There is no 1 thought of possible 
amendment. With regard to each measure he has sim- 
ply to approve or reject. He has had plenty of time 
to make up his mind. If a measure is objectionable 
in purpose or form, or is lacking in clearness, he will 
of course reject it and await — or cause — its reappear- 
ance in a more acceptable form at a subsequent elec- 
tion. The voter is thus more like a juror than like a 
legislator. His capacity for intelligent, discriminating 
work at a single election is therefore large — much 
larger, as experience shows, than at first thought might 
seem possible. 

In 1909, for example, the voters of Portland, Ore- 
gon, in a city election, besides voting for mayor and 
other officers, voted discriminatingly and with sus- 
tained interest on thirty-five measures, thirteen of 
which they passed. The average vote on each of the 
thirty-five measures was slightly over eighty-one per 
cent, of the total vote for mayor, with a range from 
seventy-five per cent, to ninety per cent. The majori- 
ties, both yes and no, were sometimes heavy, some- 
times light. There is every evidence that the voting 
in each case reflected the calm judgment of the voters. 
In Denver, in the election of May, 1910, the voters, 
besides electing city officers, dealt discriminatingly 
with a list of twenty-one measures, some of them 
trickily worded. Moreover, in this case, they had to 
face an enormous corruption fund and all that the 

150 



ALLY OF REPRESENTATIVE GOVERNMENT 

combined party machines and selfish interests could 
do to mislead. The result was a triumph for the peo- 
ple at every significant point. The people's capacity 
for direct legislation is not likely to be subjected to 
severer tests than it has already stood with signal 
success. 

Through direct legislation, the state will offer an 
attractive field of usefulness for such of her citizens 
as do not care to give up their whole time to public 
life. Public-spirited citizens, without dislocation of 
business or profession, may and will devote a much 
larger share of their time than now to the considera- 
tion of public questions. If they conceive of a desira- 
ble step in legislation, they will not have to contrive 
to get into office and to stay there long enough to ac- 
complish their ends. They have a dignified and honor- 
able method of presenting to the final authority, for 
adoption or rejection, the best fruits of their labors, 
free from the risk of mutilation or distortion by ill- 
informed, overworked, or corrupt legislatures. This 
alone would be a powerful means of bringing sponta- 
neously to the public service, and at no expense, a large 
amount of talent of the best possible sort for which 
there is now little encouragement in public life. This 
is the talent on which we should depend for the most 
serious lawmaking, and which we now have little 
chance to utilize. The legislature will thus be facing a 
reasonable and wholesome competition and the public 
cannot fail to profit from it. 

Sometimes officeholders or party machine men 
151 



THE INITIATIVE, REFERENDUM AND RECALL 

profess a great fear that direct legislation will result in 
" mob rule." This must be taken to mean that they 
fear, probably with reason, that the people, after weeks 
of deliberation and with adequate information, would 
not support their pet schemes. Prospective abundance 
of popular majorities in their favor would neither 
excite their alarm nor be called by them " mob rule." 
No ; mob action finds a more promising field in nomi- 
nating conventions and even town meetings, than in 
the long process of gathering signatures, weeks of 
discussion and deliberation, and the quiet vote on an 
Australian ballot in isolated, individual booths. 

Direct legislation is not only a safeguard against 
mob rule, but against the only thing likely with us to 
lead to violent revolution, namely, machine rule for the 
benefit of the privileged few. Majority rule precludes 
both mob rule and machine rule, for majority rule 
brings into play the great patient mass of honest, hard- 
working citizens, ordinarily silent and little felt. They 
abhor alike the violent methods of the mob and the 
intriguing of " politics." No less do they shrink from 
making themselves individually conspicuous in hope- 
lessly protesting against powerful wrongs which they 
can, though they ought not, endure. They are likely 
to suffer in silence until driven to extremes, rather 
than seek relief through the distasteful and inadequate 
means now at their disposal. To provide the people 
with orderly and regular means of expressing them- 
selves on equal terms with all their neighbors, with the 
certainty that their will thus expressed will take effect, 

152 



ALLY OF REPRESENTATIVE GOVERNMENT 

is the logical way to ensure the healthy and natural 
progress which in the long run is the only preventive 
of violent upheaval. 

An additional advantage in direct legislation is the 
education which it affords the average voter. One 
cannot help believing that the consequent toning-up of 
the public standard of thought and morals would be 
in the long run the most important feature of the sys- 
tem. Direct legislation tends thus automatically to 
produce a highly trained and self-respecting electorate, 
and to lay the deepest and most promising foundation 
for permanent good government. Direct legislation 
is the only orderly means known for accurately and 
unmistakably expressing the public will as to legisla- 
tion, and for making it prevail. It gives at last a fair 
approach to a proper and worthy means of registering 
public sentiment, well defined by some one as " the 
deliberate and reasoned judgment " of the people. It 
is as effective a balance wheel against mere popular 
clamor as it is a safeguard against the silent scheming 
of the crafty few. Direct legislation thus opens for 
the first time a fair prospect for the early realization 
of the cherished American ideal — a government by as 
well as of and for the people. 

The direct legislation idea is no novelty among 
free peoples. It may be seen in the institutions of the 
Plymouth Colony. It appears in our time-honored 
New England town meeting and the even more ancient 
Swiss Land cs gem einde, and German folk-moot, all of 
them perfect exemplifications of the direct legislation 
11 i53 



THE INITIATIVE, REFERENDUM AND RECALL 

principle on a small scale. It appears in our popular 
ratification of state constitutions and their amend- 
ments, usually insisted upon from the first, in spite of 
the pitifully inadequate facilities of our early days. 

More recently, we note the steady extension of 
direct legislation through the initiative and referen- 
dum from canton to canton in Switzerland, its applica- 
tion to Swiss federal legislation — the referendum in 
1874 and the initiative for constitutional amendments 
in 1 89 1 — and its adoption in the last decade by city 
after city and state after state in this country. Direct 
legislation (usually accompanied from the start by the 
recall) is an essential feature of nearly all modern city 
charters, and those without it will doubtless have to 
add it sooner or later to get satisfactory results. Nota- 
ble among the direct legislation cities stand Los An- 
geles, Des Moines, Haverhill and Gloucester, and 
the newest recruits, Berkeley, California, Colorado 
Springs, Grand Junction, Colorado, and Burlington, 
Iowa. Similar examples among the states are South 
Dakota since 1898, Oregon since 1902, Montana since 
1906, Oklahoma since 1907, Maine and Missouri since 
1908, Arkansas and Colorado since 1910, and Arizona 
and California in 191 1. 

For examples of the effect of direct legislation, we 
naturally turn first to Switzerland, where it has been 
in operation on what may be called a large scale for 
fifty to eighty years. With the aid of direct legisla- 
tion as a result of its moral influence as well as by its 
direct application, Switzerland has, wherever she has 

154 



ALLY OF REPRESENTATIVE GOVERNMENT 

applied it, rid herself of the misrule and exploitation 
which were previously rampant, as they had been for 
centuries, in all except the minute but ultra-democratic 
cantons. 1 Thanks to sound democratic idealism, sup- 
ported by suitable machinery for its expression, she 
has now come to be an admirably governed country. 
Mr. James Bryce, the present British ambassador to 
the United States, declared to a Cambridge audience 
in 1904 that Switzerland is the most successful de- 
mocracy that the world has ever seen. 

Further expert testimony to what is generally 
known and admitted by the well-informed and disin- 
terested is hardly needed, but the New International 
Encyclopedia, in its article on Switzerland, expresses 
it so naively that it may be worth citing. After a 
lengthy account of the civil wars and political turmoil 
in the early part of the nineteenth century, it disposes 
of the rest of the century with the single remark that 
" the history of Switzerland for the past quarter of a 
century has been very uneventful, though marked by 
a steady material, intellectual and political growth." 

All this does not mean that Switzerland is an un- 
alloyed paradise. Some of the great human problems 
seem as far from solution in Switzerland as elsewhere. 
It does mean that the government promptly reflects 
public sentiment, and at the same time is free from 

1 It is to these little cantons including less then ten per cent, of 
the area and less than seven per cent, of the population of the present 
whole country that Switzerland owes her otherwise quite undeserved 
reputation for century-old free political institutions. 

J 55 



THE INITIATIVE, REFERENDUM AND RECALL 

violent fluctuations of policy. It means that the gov- 
ernment is administered efficiently and in the interest 
of the public good. It means that Switzerland, with 
a form of government modeled largely upon our own, 
by a modification which might have been suggested by 
our Declaration of Independence, has secured good 
government in a democratic republic. 

The excellent results in Switzerland are to be seen 
not only in her federal affairs, but also in the affairs 
of an overwhelming majority of her cantons. We 
must not, however, overlook Canton Fribourg, the 
only one of the twenty-two Swiss cantons as yet una- 
ble to equip herself with the initiative and referendum. 
She has still the unperfected or " pure " representative 
system characteristic of our American states and cities 
and of the old times in the rest of Switzerland. This 
brings with it, there as here, boss rule and all that 
boss rule implies. The legislative body is nominated 
by the boss, elected by the people and managed by the 
boss. Prominent citizens are skillfully kept in line by 
a share in the plunder for themselves or for their 
churches or philanthropies, or by fear of loss of favor 
with the two chief banks, both creatures of the boss. 
There is bribery, extravagance, subordination of the 
general interest to private business, the heaviest per 
capita cantonal debt in Switzerland, and the public 
apathy which naturally follows widespread hopeless- 
ness. The agitation for the initiative and referendum 
is still kept up by Fribourg patriots as their only hope, 
but all orderly means of success are in the control of 

156 



ALLY OF REPRESENTATIVE GOVERNMENT 

the boss who, of course, fights them and will fight 
them for his political life. 1 

As a contrast to Fribourg, it should be observed 
that the chief cantons of Switzerland, Berne and Zu- 
rich, the former a farming, the latter a manufacturing 
canton, both far in the lead of their neighbors in pop- 
ulation and importance, are among the cantons having 
the initiative and referendum in their most radical and 
readily workable form. Zurich is clearly the most 
advanced of the cantons in this respect, and Berne is 
surpassed, and at that only slightly, by few besides 
Zurich. In short, where the initiative and referendum 
are most readily set in motion, there have developed 
clean government and leadership in civic and indus- 
trial growth. In the only canton where there is neither 
the initiative and referendum nor pure democracy, 
there is misrule and political apathy of the familiar 
American type. 

The Swiss success under perfected representative 
government may reasonably be expected to be repeated 
in this country, for the strength of the system lies in 
giving common human nature a fair chance to do itself 
justice. Human nature in Switzerland is very much 
like that elsewhere. That it is like that in this coun- 
try is to be seen from the fact that representative gov- 

1 This bit of evidence from Fribourg is drawn from an article en- 
titled "The Only Political Boss in Switzerland, "by George Judson 
King, Secretary of the Ohio Direct Legislation League, in the Twen- 
tieth Century Magazine for July, 1910. The article is based on recent 
personal observations in Canton Fribourg. 

157 



THE INITIATIVE, REFERENDUM AND RECALL 

ernment without direct popular control results in de- 
moralization and bad government there just as it does 
here, and in just the same way there as it does here. 

It is sometimes suggested, however, that little 
Switzerland, good as her results are conceded to be, is 
not an adequate precedent for an immense nation like 
the United States. But a small nation may exemplify 
a principle essential to the success of a large nation. 
A sound fundamental principle holds regardless of the 
scale of the enterprise. That a self-governing people 
must have effective control over the laws under which 
they live would seem to be a principle of this kind. 
Details may require adjustment, but the principle will 
hold. But all that aside, the important comparison is 
not so much with our nation as with our cities and 
states. Switzerland, unhomogeneous in population, 
preeminently a manufacturing nation, larger than 
Massachusetts, Rhode Island and Connecticut com- 
bined, with a population slightly larger than that of 
Massachusetts, is plainly an excellent precedent for 
the adoption of direct legislation by individual Amer- 
ican cities and states. 

Moreover, there may never be need for a federal 
initiative and referendum system for this country. 
With the rings once permanently ousted from our 
cities and states, the federal government should auto- 
matically run clear. For the rings that do the plun- 
dering at Washington could manifestly not long sur- 
vive without their intrenchments in the cities and 
states. At any rate, it is obviously correct tactics now 

158 



ALLY OF REPRESENTATIVE GOVERNMENT 

to go right ahead for the initiative and referendum in 
states and cities. Our only disappointments with it, 
judging by experience elsewhere, are likely to arise 
from excessive restrictions which the legislatures may 
impose upon it. 

New England, the home of the town meeting, en- 
joying the inspiration of the Massachusetts and other 
New England states constitutions, with Maine already 
in the direct legislation ranks, may be expected to take 
especially kindly to this new and long step toward the 
realization of her ancient ideals. 

The real questions for us in New England to 
answer are : 

i . Are we now as fit for this forward step as the 
Swiss were when they were putting the system in 
operation thirty to fifty years ago? 

2. Is not even a complicated law, properly ex- 
plained and vouched for, as suitable a thing for a popu- 
lar vote as a choice between complicated candidates 
whose actions no one can foresee? 

3. Is not an occasional vote on an ordinary law a 
natural and reasonable addition to our time-honored 
system of popular votes on state constitutions and their 
amendments ? 

4. Is it not worth while to disentangle measures 
from men and submit to popular vote definite and dis- 
tinct propositions instead of mixtures of candidates, 
parties and platforms? 

To ask these questions in America is to answer 
them in the affirmative. All parts of the country are 

159 



THE INITIATIVE, REFERENDUM AND RECALL 

coming to see the point. Oregon, nearly half as large 
again as all New England combined, is setting us a 
most encouraging example. Seven years ago she 
adopted direct legislation. She was then deep in politi- 
cal corruption. Thanks to the initiative, and measures 
secured with it which legislatures had refused to pass, 
she has made great progress toward better government 
and the house-cleaning is going right on. 1 The outcries 
of the local plunderers show that they feel their power 
slipping away. Their intrigues for the destruction of 
the initiative and referendum show that they know the 
cause. 

We shall be interested to see how direct legislation 
fits in with the ideas of our wonderfully far-sighted 
and successful constitution framers. It will be worth 
while to quote a few passages from the constitution of 
the commonwealth of Massachusetts — the oldest of 
their works — the spirit of which is no stranger in other 
parts of the country. Articles V, VII, and VIII of 
that honored document will give the ideas of the fa- 
thers on the relation of the people to their representa- 
tives. 

" Article V. All power residing originally in the 

* See the speech of Senator Bourne of Oregon in the United States 
Senate, May 5, 19 10 (obtainable from the Massachusetts Direct Leg- 
islation League), for an extended description of this remarkable 
work. Senator Bourne, a Republican and by birth a Massachu- 
setts man, and his colleague, Senator Chamberlain, a Democrat, 
born in Mississippi, are alike active advocates of the initiative and 
referendum after observing its eight years of operation in their home 
state. 

160 



ALLY OF REPRESENTATIVE GOVERNMENT 

people, and being derived from them, the several mag- 
istrates and officers of government, vested with author- 
ity, whether legislative, executive, or judicial, are their 
substitutes and agents, and are at all times accountable 
to them. 

" Art. VII. Government is instituted for the com- 
mon good; for the protection, safety, prosperity, and 
happiness of the people ; and not for the profit, honor, 
or private interest of any one man, family, or class of 
men : Therefore the people have an incontestable, un- 
alienable, and indefeasible right to institute govern- 
ment; and to reform, alter or totally change the same, 
when their protection, safety, prosperity and happiness 
require it. 

" Art. VIII. In order to prevent those who are 
vested with authority from becoming oppressors, the 
people have a right, at such periods and in such man- 
ner as they shall establish by their frame of govern- 
ment, to cause their public officers to return to private 
life ; and to fill up vacant places by certain and regular 
elections and appointments." 

On reading these sturdy New England doctrines 
one must conclude that the only reason why the fathers 
did not then and there establish direct legislation for 
the state and for cities as they might develop, was that 
it was at that time physically impossible. Mechanical 
invention had not advanced far enough to permit it 
even if they had conceived the idea. We must not 
forget that their facilities for disseminating informa- 
tion and gathering returns were little superior to those 

161 



THE INITIATIVE, REFERENDUM AND RECALL 

of Julius Caesar. They knew no more of railways than 
Caesar did, such highways as they had were not so 
good as Caesar's. But they resolutely did all that was 
practicable under the mechanical conditions of 'their 
time. They provided an obligatory referendum on 
the adoption and amendment of the constitution of 
the commonwealth, even though it might and did take 
weeks to put the matter to vote and get the returns. 
And it is clear that nothing was further from their 
minds than that the will of representatives should pre- 
vail over the will of the people, some modern office- 
holders to the contrary notwithstanding. 

Now that direct legislation, as a working insti- 
tution on a large scale, has become a possibility 
through the introduction of the modern means of 
spreading news and ideas by the telegraph, high-speed 
printing press, and the railway, we can proceed from 
the point where the fathers were forced to stop and 
can vindicate more clearly than ever the soundness of 
their noble idealism. 

In closing it may be said that the initiative and ref- 
erendum appeal particularly to progressive Americans 
in whom still lives the spirit of the liberty-loving men 
who founded this nation. Such citizens readily com- 
prehend the necessity of controlling the important re- 
sults, and of not limiting themselves to toying at gov- 
ernment while privilege does the governing. They 
take great satisfaction, moreover, in a remedial meas- 
ure so thoroughly in harmony with the old ideals and 
institutions. It involves, after all, only a bit of addi- 

162 



ALLY OF REPRESENTATIVE GOVERNMENT 

tional machinery, and depends for its success only 
upon our fitness for self-government 

Of course direct legislation is only a piece of mech- 
anism. It will not suffice merely to set it up. It must 
be made to work promptly and with vigor when re- 
quired. This will take real citizens. Oregon shows 
that such citizens still exist — some of them of New 
England or other American stock, some of them born 
in old-world monarchies. 

The success in Switzerland; the steady progress 
and gratifying results in America ; the strenuous op- 
position by favorites or managers of political machines ; 
the misrepresentations by professional lobbyists and 
conspicuous officeholders, echoed in ready-made " edi- 
torials," all indicate that the initiative and referendum 
are measures justly destined to receive an increasing 
amount of public attention and regard. 

With the initiative and referendum in force, we 
shall be equipped as never before to resist enemies 
from within, enemies far more dangerous to our free- 
dom than any foreign foe. 

The initiative and referendum may well be the 
means of instituting on a permanent basis the responsi- 
ble kind of representative government which our fa- 
thers lived and died to secure. 

The initiative and referendum may well prove to 
be the salvation of the momentous experiment led by 
Jefferson, Hancock, Franklin, the Adamses and Wash- 
ington. 



CHAPTER VII 
Representative as against direct legislation * 

It is not always that there is a direct relation be- 
tween the sound and fury of language and its real 
meaning, but such imposing words as the initiative, the 
referendum, and the recall do not indicate innovations 
of a light and trifling kind in the character of our 
institutions. As the doctrines which they convey are 
practiced in some of the states of the Union, and as 
they are proposed for adoption in other states, they 
involve no less than a radical change in our method 
of government. In effect, they propose the substitution 
of direct for representative government, the establish- 
ment of the direct action of the people, not merely 
in selecting their agents, but in framing and executing 
their laws. 

To most of us the proposals are full of novelty, and 
it is not too much to say that, as a people, we have 
given them no consideration worthy of the name. 
Have we explored the past to learn whether similar 
experiments have been tried; and, if tried, what has 

1 By Congressman Samuel W. McCall. Reprinted by permis- 
sion from the Atlantic Monthly, October, 191 1. 

164 



REPRESENTATIVE LEGISLATION 

been the effect? Have we reflected upon the obvious 
limitations, upon the utterance by great masses of men 
of final and definite regulations for the conduct of a 
complex society? Have we considered to what extent 
the most doubtful results under our present structure 
of government are due to the overzeal of representa- 
tives to respond to the transient and noisy, and often 
misleading, manifestations of popular opinion, and to 
their failure to act bravely as the instruments, not of 
the people's passions, but of their interests, and to re- 
quire them to select other agents, if they shall insist 
upon the doing of wrong? 

At the threshold of the discussion we encounter the 
usual epithets. The advocates of change are apt to 
seek popular favor by decorating themselves and their 
proposed innovation with some lofty adjective, and in 
a similar fashion to cover their opponents with oblo- 
quy. The quality assumed by the proponents of one or 
all of this trinity of reforms they express in the word 
" progressive." They are advocating " progressive " 
methods of government, while those who disagree with 
them stand for reactionary methods. " Progressive " 
is an alluring word. Everybody believes in progress 
if it be of the proper kind, and a due amount of voci- 
feration on the part of those claiming a monopoly of 
the virtue may serve to banish skepticism as to the 
kind. But if the question were to be settled by 
epithets, there is some ground at least for asserting 
that they should be transposed in their application. 
Representative government is comparatively modern ; 

165 



THE INITIATIVE, REFERENDUM AND RECALL 

direct government of the democratic kind is ancient; 
and the latter was deliberately discarded for the former 
by the founders of our government. I will not cite 
such a statesman as Madison, not because the heavy 
debt which the cause of free and regulated popular 
government owes him can ever be discharged, but be- 
cause in the passionate rhetoric of the self-styled Pro- 
gressives, he is set down as a reactionary. I will 
choose an authority who still remains above suspicion, 
and will take the author of the Declaration of Inde- 
pendence, which even to-day is considered radical in 
its democracy. In speaking of " the equal rights of 
man," Thomas Jefferson declared that: 

" Modern times have the signal advantage, too, of 
having discovered the only device by which these rights 
can be secured, to wit, — government by the people, act- 
ing not in person, but by representatives chosen by 
themselves." 

The framers of the constitution were entirely fa- 
miliar with the failure of direct democracy in the gov- 
ernment of numerous populations, and they were in- 
fluenced by their knowledge of that failure in devising 
our own structure of republican government. It is 
now proposed to abandon the discovery of modern 
times, to which Jefferson referred and. which he de- 
clared to be the only method by which rights can be 
secured, and to put in its stead the discarded device of 
the ancients. Who, then, are the reactionaries : those 
who are opposed to the substitution of direct for rep- 
resentative government and are in favor of the pro- 

166 



REPRESENTATIVE LEGISLATION 

gressive principles of the American constitution, or 
the supporters of direct government who advocate the 
return to the reactionary policies which thousands of 
years ago demonstrated their destructive effect upon 
the government of any considerable populations? It 
does not follow that to be a reactionary is to be wrong. 
The wise reactionary may sometimes preserve the gov- 
ernment of a state, and even its civilization. Whether 
the initiative, referendum and recall embody sound 
political principles must be determined by other tests. 
But their advocates should not masquerade. If they 
choose* to attach to themselves any label, they should 
frankly spread upon their banner the word " reaction- 
ary." 

The framers of our constitution were endeavoring 
to establish a government which should have sway over 
a great territory and a population already large and 
which they knew would rapidly increase. They were 
about to consummate the most democratic movement 
that had ever occurred on a grand scale in the history 
of the world. They well knew from the experiments of 
the past the inevitable limitations upon direct demo- 
cratic government, and, being statesmen as well as 
democrats, they sought to make their government en- 
during by guarding against the excesses which had 
so often brought popular governments to destruction. 
They established a government which Lincoln called 
" of the people, by the people, for the people/' and in 
order effectively to create it they adopted limitations 
which would make its continued existence possible. 

167 



THE INITIATIVE, REFERENDUM AND RECALL 

They knew that, if the governmental energy became 
too much diluted and dissolved, the evils of anarchy 
would result, and that there would follow a reaction 
to the other extreme, with the resulting overthrow of 
popular rights. They saw clearly the line over which 
they might not pass in pretended devotion to the demo- 
cratic idea without establishing government of the 
demagogue, by the demagogue, and for the demagogue, 
with the recoil in favor of autocracy sure speedily to 
follow; for they knew that the men of the race from 
which they sprang would not long permit themselves 
to be the conscious victims of misgovernment, and that 
they would prefer even autocracy to a system under 
which the great ends of government in the na- 
tion should not be secured, or should be even per- 
verted. 

We are in danger of forgetting the essential pur- 
pose of government : that it is not an end but a means, 
that the people do not exist for the government but 
that government exists for the people/ The idolatry 
of government, or of its institutions, has been as de- 
basing and injurious as any idolatry that has ever af- 
flicted mankind. It has frequently been the agent of 
gross and wholesale oppression ; it has frequently been 
the means by which the many have been kept in servi- 
tude and subjection; and, until the establishment of 
our own system, the governments have been few which 
have had for their chief purpose to safeguard and pro- 
tect the individual, and to hold over him the shield of 
law, so that he might be secure in his life, his liberty, 

168 



REPRESENTATIVE LEGISLATION 

the fruits of his labor, and in his right as an equal 
member of the state. 

And when I speak of the individual, I mean the 
chief thing that is essential in the meaning of the term 
" the people." I do not accept the latter term in the 
sense in which it is so often sweetly used by those who 
desire our votes. I am unable to see how any good, 
coming to a mass of men, can be felt in any other 
way than by the individuals in the mass. And until 
somebody shall point out a higher consciousness than 
that of the individual man or woman or child, he can 
hardly* be heard to deny that the individual man or 
woman or child is, after all, the ultimate concern of 
the state. 

The notion that there is a collective personality 
called " the people," separated from the individuals 
who compose it, and which may be used to oppress 
each one and all of its component parts in turn, may 
well have been a conception of the Greek demagogues 
by whom it was so fittingly illustrated in practice. I 
cannot understand how there can be any freedom that 
is not in the last analysis individual freedom. How- 
ever great a mass of men you may have in a nation, 
however powerful physically it may be, if each indi- 
vidual is the victim of oppression, if he is denied rights, 
if there is no forum open to him, where he can be 
heard to say against the majority, " This is mine," — ■ 
then " the people " have no such thing as liberty, they 
have no such thing as popular rights. As to the " com- 
posite citizen," he obviously is nobody who ever has 
12 169 



THE INITIATIVE, REFERENDUM AND RECALL 

existed or ever will exist. When the advocates of a 
reform, ignoring the man of flesh and blood in the 
street, are conducting their operations with reference 
to this mythical person, they should emigrate to Uto- 
pia. 

Is it for the interest of the individual members of 
our society to have the great mass of us pass upon the 
intricate details of legislation, to execute our laws and 
to administer justice between man and man? That 
I believe to be in substance the question raised by the 
initiative, the referendum and the recall, as they are 
now practically applied in at least one of the states of 
the Union, the example of which is held up as a model 
to the other states. With an infinitesimal responsi- 
bility, with only one vote in a million, how seriously 
would each one of us feel called upon to withdraw 
from his own private pursuits and to explore in all 
their details the complicated questions of government? 
It would be imposing an impossible task, scattered as 
we are and unable to take common counsel, to require 
us in the mass to direct the work of government. 

First, with regard to the initiative. In our legis- 
lation the work of investigation and of perfecting de- 
tails is of such great difficulty that proposed laws are 
distributed among various committees, which are 
charged with the duty of considering their exact terms. 
The legislative body as a whole, although its members 
are paid for doing the work, cannot safely assume to 
pass upon the intricate questions of legislation without 
investigation by committees selected with reference to 

170 



REPRESENTATIVE LEGISLATION 

their fitness for the task. The proposed law as per- 
fected by a committee is brought before the representa- 
tive assembly and it is there again discussed and sub- 
jected to criticism, both as to policy and form, and 
in this open discussion defects often appear which re- 
quire amendment, and sometimes the defeat of the 
bill. And even with these safeguards laws often find 
their way upon the statute-books which are not best 
adapted to secure the purposes even of their authors. 
But what would be the procedure under the initia- 
tive? In Oregon a law may be initiated upon a peti- 
tion of eight per cent, of the voters, and it then goes 
to the people upon the question of its final enactment 
without the intervention of any legislature. Some 
man has a beautiful general idea for the advancement 
of mankind, but beautiful general ideas are exceeding- 
ly difficult to put into statutory form so that they may 
become the rule of conduct for a multitude of men. 
Another man may have some selfish project, which, 
like most selfish projects, may be concealed under spe- 
cious words. The beautiful idea or the selfish scheme 
is written by its author in the form of law, and he 
proceeds to get the requisite number of signers to a 
petition. With a due amount of energy and the pay- 
ment of canvassers, these signatures can be secured by 
the carload, and the proposed law then goes to the 
people for enactment, and the great mass of us, on 
the farm, on the hillside, and in the city, proceed to 
take the last step in making a law which nine out of 
ten of us have never read. And this is called securing 

171 



THE INITIATIVE, REFERENDUM AND RECALL 

popular rights and giving the people a larger share in 
their government! 

The people, at the election in Oregon held in 19 10, 
passed upon proposed laws which filled a volume of 
two hundred pages, and they passed upon them all in 
a single day, each voter recording his verdict at the 
polling booth upon both the candidates and the pro- 
posed laws. In the ordinary legislative body, made up 
of no different material from that of which the peo- 
ple are composed, an important question may be con- 
sidered for a day, or even for a week; and then, with 
the arguments fresh in their minds, the legislators 
record their votes upon the single measure. What a 
delightful jumble we should have if forty different 
statutes were voted upon in the space of a half-hour 
by the members of a humdrum legislature ! 

Of course, one must be cautious about expressing 
a doubt that the people in their collective capacity can 
accomplish impossibilities. You may say of an individ- 
ual that he should have some special preparation be- 
fore he attempts to set a broken arm or perform a 
delicate operation upon the eye. But if you say that 
of all of us in a lump, some popular tribune will de- 
nounce you. And yet there is ground for the heretical 
suspicion, admitting that each one of the people may 
have, in him the making of a great legislator, that 
there should be one simple prerequisite which he should 
observe in order to be any sort of a legislator at all. 
He should first read or attempt to understand the pro- 
visions of a bill before solemnly enacting it into law. 

172 



REPRESENTATIVE LEGISLATION 

One can scarcely be accused of begging the question 
to say that the voters would not read a whole volume 
of laws before voting upon them. The slightest 
knowledge of human nature would warrant that asser- 
tion. 

How many even of the most intelligent of our peo- 
ple, of college professors, of ministers, read the stat- 
utes that have already been passed and that are to 
govern their conduct? Even lawyers are not apt to 
read them generally, but in connection with particu- 
lar cases. But if some proof were necessary, one has 
only to cite some of the Oregon laws. For example, 
there are two methods of pursuing the salmon fisher- 
ies in the Columbia River : in the lower and sluggish 
waters of the stream, fishing is done by the net; and 
in the upper waters by the wheel. The net fishermen 
desired to prohibit fishing by the wheel, and they pro- 
cured sufficient signatures and initiated a law having 
that object in view. On the other hand, the wheel 
fishermen at the same time wished to restrict fishing 
by the net, and they initiated a law for that purpose. 
Both laws went before the people at the same election 
and they generously passed them both, and thus, so 
far as the action of the people was concerned, the 
great salmon fisheries of the Columbia were practically 
stopped. 

A law was " initiated " by signatures and was en- 
acted by the people at the election in November, 19 10, 
providing for the election of delegates to the national 
political conventions by popular vote. The law for- 

173 



THE INITIATIVE, REFERENDUM AND RECALL 

bade each voter to vote for more than one candidate. 
But upon the usual basis of apportionment Oregon is 
entitled to ten delegates in a national convention. If 
some candidate should be preeminently fitted above 
all others for the place and should receive all the votes, 
the state would have only a single delegate in the con- 
vention. If the voter has the right to vote for all the 
candidates for the whole representation of his state in 
the electoral college, what semblance of a reason can 
there be why he should not have the same participation 
in the preliminary election, when the candidate, who 
may finally be elected president, is to be chosen? The 
same law forbids a voter from voting for the nomina- 
tion of more than one candidate for presidential elec- 
tor. Thus a minority of a party in the state may nomi- 
nate candidates for electors hostile to its presidential 
candidate. If the vote of the presidential electors of 
Oregon shall not some time be divided, even though 
the popular vote may have been strongly in favor of a 
given candidate, it will not be the fault of this law. 

It seems rather superfluous to cite instances to 
prove that, where the final legislative body is denied 
the power of meeting and discussing the provisions of 
a proposed law, there will be loose and freakish legis- 
lation of the worst kind. Mr. Woodrow Wilson, be- 
fore he essayed the exacting role of the practical poli- 
tician, declared before the students of Columbia Uni- 
versity that a government cannot act inorganically by 
masses, it must have a law-making body. It can no 
more make laws through its voters than it can make 

T74 



REPRESENTATIVE LEGISLATION 

laws through its newspapers. And in the same course 
of lectures he declared that : 

" We sometimes allow ourselves to assume that 
the ' initiative ' and the ' referendum,' now so much 
talked of and so imperfectly understood, are a more 
thorough means of getting at public opinion than the 
process cf- our legislative assemblies. Many a radi- 
cal programme may get what will seem to be almost 
general approval if you listen only to those who know 
they will not have to handle the perilous matter of 
action, and to those who have merely formed an 
independent, that is, an isolated opinion, and have not 
entered into common counsel; but you will seldom 
find a deliberative assembly acting half so radically as 
its several members have professed themselves ready 
to act before ^they came together into one place and 
talked the matter over and contrived statutes." 

After Mr. Wilson entered upon his political career, 
he changed his mind, but his recantation in no degree 
affects the weight of the argument to which I have 
referred. The " common counsel," of which he speaks 
is an indispensable process in the making of laws, and 
whenever our legislative bodies impose serious limita- 
tions upon the process, it is usually to the detriment 
of the character of the laws passed; and the more 
grave and statesmanlike the deliberations of those 
charged with the responsibility, the better it will be for 
the state. For this vital process there would be substi- 
tuted the enthusiasm of somebody who believes he 
has devised some statutory cure-all for the ills that 

i75 



THE INITIATIVE, REFERENDUM AND RECALL 

afflict the body politic, and embodies his enthusiasm in 
a bill. He seconds himself, as any one may, with the 
necessary signatures to a petition; and then without 
coming together and taking common counsel, and often 
without reading what has been written, the great mass 
of us solemnly proceed to vote. Such a procedure 
would put a test upon the people under which no nation 
could long endure. 

The referendum is somewhat better than the initia- 
tive, but as a settled policy in the making of ordinary 
statutes it is indefensible. It can be used upon con- 
crete propositions that are not complex in character, 
and especially upon constitutional propositions which 
ordinarily enunciate general principles. In the case 
of constitutional changes, however, they should never 
take effect without the support of a clear majority of 
the voters, and in advance of their action they should 
have the support of a large majority of the legislative 
body, such as is provided in Massachusetts, so that our 
constitutions should have more stability than mere 
statutes, and should not be subject to change with every 
passing breeze. 

I may illustrate again from the example of Ore- 
gon — which is pointed out by the friends of these 
reforms as a model, and whose people are heroically 
subjecting themselves to political vivisection in the 
testing of governmental experiments. An amendment 
may be made to the constitution of that state by a 
majority of those who vote upon the proposition in 
question. An amendment was passed in one election, 

176 



REPRESENTATIVE LEGISLATION 

by barely one-third of the legal voters, which pro- 
vided that in civil cases three- fourths of a jury might 
render a verdict, that no new trial should be had where 
there was any evidence at all to sustain the verdict, 
and making other important changes in the method 
of administering justice. Constitutional changes should 
not be made, except in deference to a pronounced and 
settled public opinion, which cannot better be deter- 
mined under our system than to require the action of 
successive legislatures and afterwards a direct vote of 
the people. 

The referendum may sometimes profitably be used 
in connection with questions affecting municipalities 
where each voter has an appreciable interest in the 
solution of the question and is familiar with the condi- 
tions upon which the solution depends ; but as a step in 
the process of passing statutes of the usual character, 
statutes which create crimes and provide penalties for 
their violation, or which have complicated regulations 
of a business character, the use of the referendum 
would be vicious. We are not in the mass adapted 
to pass upon questions of detail, just as the thousands 
of stockholders of a great corporation are not in a 
position directly to manage its business affairs. The 
function that we can best exercise is that of selecting 
agents for that purpose and of holding them responsi- 
ble for results. Upon the questions relating to the 
character of representatives, who are usually known 
personally to the people, they have excellent means for 
forming a judgment. But if they so often make a 

177 



THE INITIATIVE, REFERENDUM AND RECALL 

mistake in their judgments of the men they select, as 
we must infer from the arguments put forward in 
favor of direct legislation, how much more would they 
be apt to make mistakes in dealing with the compli- 
cated questions involved in practical legislation? 

The referendum takes away from the legislature 
the responsibility for the final passage of laws and 
permits it to shift the burden upon the people. Leg- 
islators will be asked : " Are you not willing to trust 
the people to say in their wisdom whether a given bill 
should be enacted? " The prevailing vice of members 
of law-making bodies in our country is not venality, it 
is political cowardice; and they will be ready to take 
refuge in that invitation to trust the people. A witty 
member of Congress from Mississippi once said that 
he usually found it easier to do wrong than to explain 
why he did right. There will be no such difficulty 
under the referendum. The legislator may dodge the 
responsibility of voting upon some bad but specious 
law where his political interests would lead him to 
vote one way and his sense of duty another way. He 
would only need to say that he believed in the people, 
and would vote to refer it to that supreme court of ap- 
peal. Even under the present system a legislator is 
quite too much influenced by the noisy demonstrations 
that may be made in favor of one side or the other of 
a pending proposition, and some of the worst laws that 
find their way upon the statute-books get there, not 
because they are approved by the judgment of the leg- 
islator, but in response to what he thinks may be the 

178 



REPRESENTATIVE LEGISLATION 

wishes of the people. And instead of voting for what 
he honestly believes to be just and for the public inter- 
ests, even against what may appear at the moment to 
be popular sentiment, and then bravely going before 
his constituents and attempting to educate them upon 
the question, he quite too often tacks and goes before 
the wind. 

While the prevailing fault of legislative bodies is, 
as I have said, political cowardice, the fault of the 
voter is political indifference. There are far too few 
of us who carefully study public questions and try to 
secure exact information about them. We are attracted 
by sensational charges, by lurid headlines in the news- 
papers, and by generalities. We too often compla- 
cently accept the estimate that is placed upon our pro- 
found and exact political knowledge by the men who 
are asking us to vote for them, and we ase far from 
giving that serious attention to the political issues 
which we bestow upon our own private affairs. 

There is a lawyer of very high standing at the 
bar of his state who was astonished to be told that the 
House of Representatives had an established order of 
business which consumed the greater part of its time. 
He imagined that the Speaker had practically un- 
limited discretion in recognition. Another intelligent 
man who was president of a great railroad could not 
give the name of his member of Congress, although 
he had probably voted for him for ten years, if he 
had voted at all. Such instances are by no means rare, 
and intelligent people of that sort who neglect their 

179 



THE INITIATIVE, REFERENDUM AND RECALL 

public duties often become the easy victims of every 
ism and dum. 

We are so engrossed in our private business that 
many of us give no attention to public questions, or we 
too frequently bestow upon the latter such superficial 
study that our action becomes the dangerous thing 
that is based upon little knowledge. This condition of 
indifference, even under our present system, produces 
nothing but an evil effect upon the character of laws; 
and this evil effect would be greatly intensified under 
the initiative and referendum. Legislation may be ex- 
pected to represent in the long run the fair average 
of the information and the study of the body which 
enacts it, whether that body be composed of four hun- 
dred legislators or one hundred millions of people. 

A reform that is most needed is one that will make 
difficult the passage of laws, unless they repeal exist- 
ing statutes. The mania of the time is too much legis- 
lation and the tendency to regulate everybody and 
everything by artificial enactments. The referendum 
would not be likely to furnish the cure for this evil, 
but would tend to increase the number of questionable 
statutes that would be referred to the people ; and some 
of them would doubtless be enacted. If those who are 
chosen and paid to do the work, and upon whom the 
responsibility is placed, are sometimes found to enact 
vicious laws, what would be the result if legislation 
were enacted by all of us when we had made no special 
investigation of details, when we should be quite too 
prone to accept the declamatory recommendations of 

180 



REPRESENTATIVE LEGISLATION 

the advocates of legislative schemes and submissively 
swallow the quack nostrums that might be offered for 
the diseases afflicting the body politic ? 

The most dangerous statutes are those which deal 
with admitted evils, and, in order to repress them, are 
so broadly drawn as to include great numbers of cases 
which should not fairly come within their scope or 
to create a borderland of doubt where the great mass 
of us may not clearly know T how to regulate our con- 
duct in order that we may comply with their prohibi- 
tions. Just such statutes, with a basis of justice but 
with imperfectly constructed details, would be most 
likely to prevail upon a popular vote. If the forty-six 
states of the Union, and the national government 
which is the aggregate of them all, should have this 
system of direct legislation, our statute-books w T ould 
very probably soon become a medley of ill-considered 
reforms, of aspirations sought to be expressed in the 
cold prose of statutes, of emotional enactments per- 
petuating some passing popular whim and making it 
a rule of conduct for the future ; and the strict enforce- 
ment of our laws would mean the destruction of our 
civilization. 

And then, in order to perfect this scheme of popu- 
lar government and to safeguard the rights of a help- 
less people, in addition to all this, they offer us the 
recall. Not merely are the laws to be directly enacted 
by the people, but the execution of the laws is to be 
conducted in the same way. There would be tem- 
porary agents for the purpose of governing, but the 

181 



THE INITIATIVE, REFERENDUM AND RECALL 

people would have ropes about their necks and at any 
moment they would be subject to political extinction. 
This power involves the supposition that the people are 
omniscent and ever-watchful. 

The constitution of Arizona seems to be in line 
with the most advanced thought upon this subject. 
That constitution provides that twenty-five per cent, of 
the voters may institute a proceeding for the recall; 
and when it is invoked the man whom they have 
elected to an office is permitted either to resign in five 
days or to defend himself in two hundred words, 
upon a proceeding to throw him out in disgrace. 

In Oregon, it very rarely happens that there is an 
election in which the defeated candidate does not 
receive twenty-five per cent, of the vote, and not infre- 
quently he receives nearly one-half of it. It would be 
a matter of no difficulty for him to initiate a recall and 
practically to have the election over again; and so we 
should have perpetual warfare over the holding of 
office. That result has already clearly developed 
where the recall is in force. 

A public officer could not take the long view; he 
could not patiently study the problems that confronted 
him and carefully look into the conditions with which 
his office had placed him in close contact, but of which 
as a private citizen he could have only the most gen- 
eral knowledge. But he would need to be careful to 
do only those things which might be justified, not by 
close inspection, but upon the most superficial view. 
The office to which he has been elected gives him an 

182 



REPRESENTATIVE LEGISLATION 

elevated point of view which he did not have before, 
but he cannot avail himself of his wider range because 
if he is no sooner in office than he must justify him- 
self or retire in disgrace, he will be likely to do the 
thing most pleasing to the prevailing fancy and which 
will adapt itself most easily to the momentary condi- 
tion of the public mind. His political interests will 
lead him to do the plausible and easily advertised 
thing, and it may be the thing that will really injure 
the people. 

Whether such a government may be called popular 
or not, we should be likely always to have under it 
government of the politician rather than government 
of the statesman. I have been criticised for using an 
expression similar to this, as if I had implied the con- 
verse : that we now always have government by the 
statesman ; but such an inference can be drawn only by 
a careless or an unscrupulous thinker. That we some- 
times have government by the statesman is undeniable ; 
but that our government is perfect, nobody would pre- 
tend. Edmund Burke asserted in effect the same thing 
at a time in his career when he was the most liberal, 
as he was always the most philosophical, of British 
statesmen. In appealing to his constituents for the 
right of a representative " to act upon a very enlarged 
view of things," and not to look merely to " the flash 
of the day," he declared : " When the popular mem- 
ber is narrowed in his ideas, and rendered timid in his 
proceedings, the service of the Crown will be the sole 
nursery of statesmen." According to Burke's view, 

183 



THE INITIATIVE, REFERENDUM AND RECALL 

the constant response to the popular mood would at 
least banish statesmen from the service of the people, 
if it did not limit it to the politicians. 

It is not difficult to turn back to the supreme crises 
in American history, when its greatest figures were 
heroically struggling for what they saw to be for the 
interests of their country, and, if the policy of the 
recall had been in force, to see how the whole course 
of history might have been changed, and how ambi- 
tion and envy might have utilized a temporary unpop- 
ularity to terminate some splendid career. 

As an illustration, take Lincoln in the earlier days 
of his administration. The disastrous defeats that the 
Union arms had suffered had been relieved only by 
slight successes. Lincoln scarcely had a friend even 
in his own cabinet. Seward was willing to take him 
under guardianship and run the country for him; 
Stanton had written of the " imbecility " of the ad- 
ministration ; Chase was quite ready to be a candidate 
for the presidency himself; the abolitionists were un- 
sparing in their criticism; the great organs of public 
opinion were hostile to him; and there can be little 
doubt that, if a proceeding for recall could have been 
had against him at the moment when he was envel- 
oped in the clouds of unpopularity, the career of the 
greatest of Americans would have been brought to a 
disgraceful ending, with results to civilization which 
it is melancholy to contemplate. 

And then we are to have the recall of judges. 
The enforcement of laws by judges subject to popular 

184 



REPRESENTATIVE LEGISLATION 

recall would be likely to be quite in keeping with the 
character of the laws, if they had been enacted under 
the initiative and referendum. If we are to have all 
the other things, the initiative, the referendum, and 
the recall of political officers, there would be this 
reason for having the judicial recall. It would com- 
plete and make exquisite the harmony of this 
destructive system. The two fundamental things in 
the development of English liberty were the free par- 
liament chosen by the people and independent of the 
crown, and the independence of the judiciary, which 
had Held its tenure only at the royal pleasure. The 
first great step for the independence of Parliament 
was won at Runnymede, and the most signal result 
of the Revolution of 1688 was the establishment of 
the independence of the judiciary. 

Every schoolboy knows the story of the bloody 
assizes, the black judicial murders, the gross travesties 
of justice which were seen under the old system, when 
the judges held their office subject to the favor of the 
crown. It was only after the revolution that English 
courts became the real theatres of justice, and the 
weight of the law and the evidence, and not the fear 
of a master, determined the decree. But the recall of 
judges would make them on the instant subject to 
another master. The judge, in order to feel secure in 
his office, would have to consult the popular omens 
rather than the sources of the law. Instead of looking 
to the drift of the authorities, he would be likely to 
study the direction of the popular winds. If in some 
13 185 



THE INITIATIVE, REFERENDUM AND RECALL 

judicial district a strong labor union or a great cor- 
poration should hold the balance of political power, the 
courts in that district would be likely to become mere 
instruments of oppression. 

But if we, the people, are so perfect that we can 
do no wrong, even though we are guilty of no investi- 
gation, and can with wisdom assume directly to enact 
and enforce our laws, what reason is there why there 
should be any constitutional restraint upon our action, 
and why should we be hampered with statutes or con- 
stitutions even of our own making? Why not have 
the present entirely free from restraints imposed by 
the past ? Why not permit us in our omnipotent wis- 
dom to decide each case upon its own merits, consid- 
ering only the inherent principles of abstract justice, 
which in our collective capacity, according to our flat- 
terers, we must of course thoroughly understand? 

The democracy of Athens at last attained to this 
altitude, where the sublimated " composite citizen " 
stood forth unfettered and showed what he could 
really do. In the latter days of that city the action of 
her people became so direct that in a single abhorrent 
decree, disregarding what was left of their constitu- 
tion, they ordered six of their generals, among them 
the son of Pericles, to be executed, because, although 
victorious over their enemies in the days when Athe- 
nian victories were few, the success had not been 
achieved without cost. 

Those who advocate the direct action of our great 
democracy might study with a good deal of profit the 

186 



REPRESENTATIVE LEGISLATION 

history of the little state to which I have just been 
referring. No more brilliant people ever existed than 
the Athenian people. They had a genius for govern- 
ment. The common man was able to " think im- 
perially." Their great philosopher, Aristotle, could 
well speak of the Athenian as a political animal. They 
achieved a development in literature and art which 
probably has never since been reached. They could 
boast of orators and philosophers to which those of 
no other nation can be compared. We marvel when 
Ave consider the surviving proofs of their civilization. 
But when they did away with all restraints upon their 
direct action in the making and enforcement of laws, 
in administering justice and in regulating foreign 
affairs, their greatness was soon brought to an end, 
and they became the victims of the most odious 
tyranny to which any people can be subjected, the 
tyranny that results from their own unrestrained and 
unbridled action. 

It is said that the history of those distant times 
can present no useful precedent for our own guidance ; 
but in what respect is human nature different to-day? 
Whatever new stars our telescopes may have discov- 
ered, whatever new inventions may have been brought 
to light, and whatever advances may have been made 
in scientific knowledge, the mainsprings of human 
action are substantially the same to-day that they were 
in the time of the Greeks. We should be rash, indeed, 
to assume that we shall succeed where they failed, and 
that we can disregard their experience with impunity. 

187 



THE INITIATIVE, REFERENDUM AND RECALL 

But we are told that the crime of our age is the 
inordinate love of wealth, and that to protect ourselves 
from its evils we must set aside our existing institu- 
tions. But is the love of wealth any new thing? The 
greatest of ancient statesmen were accused of the 
grossest forms of bribery. Thousands of years ago 
the love of money was declared to be the root of all 
evil. It is not the fault of an age to be satisfied with 
itself. Poets have always been singing of a golden 
age, and they have placed it sometimes in the past, 
sometimes in the future, but never in the present. We 
may go back almost to the oldest of poets, Hesiod, and 
we shall find him placing the golden age far back of 
his own day, while his own time he pictured as one 
stained with plundering, with envy, brawling, and 
perjury. Horace in a lively ode sought a poet's escape, 
and called upon the Roman citizens to abandon their 
wicked country and set sail for the mythical islands 
which Jupiter had set aside when he stained the golden 
age with brass and hardened the brazen ages into iron. 
And those islands were no more mythical than the 
refuge from our own crimes which the inventors of 
the initiative, the referendum and the recall have 
pointed out to us. 

In what respect should we have been better if, dur- 
ing the amazing physical development of the last two 
generations, we had had direct democratic govern- 
ment? It cannot be contended that our legislators did 
not represent the people. If they had attempted by 
their votes to repress the universal sentiment for indus- 

188 



REPRESENTATIVE LEGISLATION 

trial expansion, they could not have remained in office. 
The people of the towns, even of New England, were 
found voting bonds as bonuses for the building of rail- 
roads and exemptions from taxation in order to secure 
manufacturing plants. And in the growing West the 
sentiment for empire and expansion was so strong that 
cities and towns were bidding against each other in 
the offer of gratuities, and if it had not been for the 
occasional conservatism of legislatures and for the 
issuing of injunctions by judges, who under the recall 
would quite likely have been thrown out of office, 
our western country would have been covered with 
communities which had made themselves bankrupt by 
the gratuitous issue of bonds in aid of factories and 
railroads; and we should probably not have attained 
anything approaching .our present development be- 
cause of the check that would inevitably have come 
through the gross corruption of the system. 

The advocates of direct government cite the exam- 
ples of Oregon and Switzerland, where they point to 
results with an eloquence nowhere else to be found 
outside of a mining prospectus. Perhaps I have al- 
ready referred sufficiently to Oregon. One must be 
easily satisfied who can be convinced by a careful 
scrutiny of results in that state, even though the ex- 
periment has been tried among her intelligent people. 
Switzerland is a small country, scarcely equal in area 
to some of our American counties, and a large propor- 
tion even of that small area is covered by uninhabit- 
able mountains. The population is thrifty and con- 

189 



THE INITIATIVE, REFERENDUM AND RECALL 

servative and largely devoted to the work of caring 
for the vast numbers of tourists who annually visit 
the country. The conditions as to complexity of indus- 
try are radically different from those existing in 
America. But while Switzerland is one of the coun- 
tries best adapted, as we certainly are one of the least 
adapted, to the operation of the initiative and the ref- 
erendum, the results there are not such as to justify 
their adoption in any other country, if we may credit 
the report made to the State Department by our vice 
consul at Berne, and presented to the Senate by Mr. 
LaFollette on July 13, 1909. The report says : 

" The great questions of centralization, civil status, 
laws of marriage and divorce, bankruptcy laws, the 
customs tariffs, the railroad purchase, employers' lia- 
bility, factory laws, unity of the conflicting cantonal 
civil and criminal laws into a federal code, the mili- 
tary organization, the pure-food law, etc., all of 
which are things of the past, were congressional 
measures. It may safely be said that the initiative 
can be of decided and positive value only in dis- 
tricts small enough to enable the average citizen to 
form a conscientious opinion upon projects of such 
local significance as to be well within his practical 
knowledge, but, in addition, he must exercise his duty 
as he sees it at the polls. With a comparatively small 
number of signatures requisite for an initiative meas- 
ure, its danger lies in the fact that it may easily be 
prostituted by factions, cliques, malcontents, and dem- 

190 



REPRESENTATIVE LEGISLATION 

agogues, to force upon the people projects of partisan, 
freak, or unnecessary legislation." 

As to the referendum, there is no other veto power 
in Switzerland. While it is not so intelligently exer- 
cised as it would be by an upright executive, yet it has 
occasionally proved an important check. The most 
striking general result is seen in the relatively small 
number of voters who will vote upon laws ; and while 
statutes have been passed to compel voting, their pro- 
visions have simply increased the great number of 
blank votes. 

The most serious tendency under our present sys- 
tem is seen in the multiplication of statutes, which 
threatens to destroy liberty and even to engulf our civ- 
ilization. But much of this legislative rubbish is the 
product of those who are given to exploiting them- 
selves as the especial champions of the people or is 
the result of the readiness of the legislator to respond 
to what he thinks is the popular demand. The mem- 
ber who is most disposed to cast a negative vote is 
stigmatized as a reactionary. It is not difficult to 
place the most immature, visionary, and apparently 
popular schemes upon the statute-books of some of the 
oldest and, until recently, most conservative states of 
the Union. In one historic commonwealth the princi- 
pal avocation of the people soon promises to be poli- 
tics, assuming that they shall pay due attention to their 
political duties, and the next " reform " will not un- 
naturally be the passage of a law to> pay the voter out 

191 



THE INITIATIVE, REFERENDUM AND RECALL 

of the public treasury for the demand made upon him 
in listening, through each recurring summer, to the 
wooing of self-constituted candidates — and there can 
well be no other candidates; in voting upon their 
claims; and finally, in following the campaign con- 
ducted by the parties, and in voting in the chief elec- 
tion. The essential remedy for checking legislation 
would seem to be the education of the people so that 
they will present a body of sound and definite opinion 
to which the representative may respond. This work 
must be done by the people themselves, and it can be 
aided greatly by the newspapers if they will pander 
less to sensationalism, indulge less in defamation of 
the agencies of government, and seek to become the 
veracious chroniclers of their times. 

We should not experiment lightly with the funda- 
mental principles of our government and trust to our 
good fortune to escape danger. It is well to be an 
optimist, at least so far as faith is concerned, in the 
final triumph of good in the universe; but we should 
be careful not to follow too willingly those profes- 
sional optimists and political Micawbers who are 
always sure, in whatever condition of danger we put 
ourselves, that something will turn up to our advan- 
tage. One of the most radical mistakes our nation has 
ever made was contributed to in large measure by 
well-meaning people who employed eulogiums upon 
their own optimism instead of arguments, and de- 
nounced as pessimists those who did not cheerily agree 
with them. Faith that things will ultimately come out 

192 



REPRESENTATIVE LEGISLATION 

well does not mean that we may recklessly take the 
next step. 

It should be remembered that civilization has some- 
times moved backward for a time, that liberty has been 
submerged, and that great and powerful nations have 
been brought to naught. Instead of changing our sys- 
tem of government because of the existence of evils 
which have existed since the beginning of time, and 
instead of attempting to seek refuge in a demagogue's 
paradise, our people should be incited to study closely 
the problems of government, to set higher standards 
for their own conduct, with the result that higher stand- 
ards will be followed by their chosen agents ; and there 
is no evil for which the initiative, the referendum, and 
the recall are proposed as a remedy that cannot effect- 
ively be dealt with under our republican institutions 
without the disintegration, demoralization, and ulti- 
mate destruction of regulated liberty and of individual 
rights likely to follow from the application of those 
reactionary policies, just as they have followed them 
when applied upon a large scale in history. 



CHAPTER VIII 

A DEFENCE OF DIRECT LEGISLATION 1 

Intelligent and profitable discussion of practical 
problems of social or governmental improvement must 
include full recognition and due consideration of the 
forces controlling human action. Society and govern- 
ment are purely organizations of human beings, and 
their limitations and possibilities are measured by the 
average of individual development. The desideratum 
is to give the greatest freedom to beneficial influences, 
and to restrain all tendencies toward evil influences. 
Successful and permanent government must rest pri- 
marily on recognition of the rights of men and the 
absolute sovereignty of the people. Upon these prin- 
ciples is built the superstructure of our republic. Their 
maintenance and perpetuation measure the life of the 
republic. These policies, therefore, stand for the 
rights and liberties of the people, and for the power 
and majesty of the government as against the enemies 
of both. 

Delegated government exists where the public 

1 By Senator Jonathan Bourne, Jr. Reprinted, by permission, 
from the Atlantic Monthly, January, 19 12. 

194 



A DEFENCE OF DIRECT LEGISLATION 

servant owes his nomination and election to known 
individuals — political bosses, caucus, convention and 
legislative managers, or campaign contributors — thus 
establishing personal obligations and accountability, 
resulting in service for selfish interests. Popular gov- 
ernment exists where the public servant is under ob- 
ligation to and solely accountable to the composite 
citizen, individual unknown. This necessarily results 
in public service for the general welfare, and not for 
any selfish interest, the public servant realizing that 
otherwise he must be recalled, or will certainly fail of 
reelection. 

Because society and government should be based 
upon a full recognition of the elemental forces con- 
trolling human action, I urge the reader's careful at- 
tention to my analysis of these forces. I assert that 
either impulse or deduction, followed by conviction, 
controls all human action. If the individual be con- 
fronted with the necessity for immediate action, then 
impulse arising from emotion, such as love, hatred, 
anger, sympathy, sentiment, or appetite, is the deter- 
mining force. But when the individual has days, 
weeks, or months to consider his course, then deduc- 
tion, followed by conviction, is the determining force. 
Without conviction, there will be no action. 

Individual action should be guided by reason, but 
is frequently emotional. Community action, as in an 
election, must be based upon conviction resulting from 
analysis and deduction. 

I assert that self-interest is the force controlling 
i95 



THE INITIATIVE, REFERENDUM AND RECALL 

every future or postponed action of the individual — 
not necessarily always selfish interest, for sometimes 
the individual is satisfied with his participation in the 
improved general welfare incident to the action. Gen- 
erally, however, the individual's action, when unre- 
strained, is governed by his own selfish and personal 
interest. 

No two people in the world are exactly alike ; con- 
sequently each individual has a different point of view 
or idea as to what constitutes his own particuar per- 
sonal or selfish interest. Where individuals act col- 
lectively or as a community — as they must under the 
initiative, referendum and recall — an infinite number 
of different forces are set in motion, most of them 
selfish, each struggling for supremacy, but all differ- 
ent because of the difference in the personal equations 
of the different individuals constituting the commu- 
nity. Because of their difference, friction is created — - 
each different selfish interest attacks the others because 
of its difference. No one selfish interest is powerful 
enough to overcome all the others; they must wear 
each other away until general warfare, according to 
the views of the majority acting, is substituted for the 
individual selfish interest. 

If all the individual units of society were alike, 
then selfishness would dominate not only the indi- 
vidual but the community action as well. But so long 
as no two people are alike, just so long will selfishness 
dominate the individual if permitted to act indepen- 
dently, while general welfare must control all com- 

196 



A DEFENCE OF DIRECT LEGISLATION 

munity action; for if the individual cannot secure the 
gratification of his own selfish desire, then he must 
rest satisfied with the improved general welfare in 
which he, as one of the units of the community, is a 
proportional participant. 

This logic applies to a community or a class. 
Under the initiative, referendum and recall there can 
be no class or community action against the general 
welfare of the citizens constituting the zone of action. 
The individual, through realization of the impossibil- 
ity of securing special legislation for himself and 
against the general welfare of the community, soon 
ceases his efforts for special privilege and contents 
himself with efforts for improved general welfare. 
Thus the individual, class and community develop 
along lines of general welfare rather than along lines 
of selfish interest. 

In further refutation of the unwarranted fear of 
hasty or unwise community action, I assert that no in- 
dividual will ever vote for or willingly assent to a 
change, unless satisfied that the change will directly 
benefit him individually, or that the action will bring 
improved general welfare to the community, in which 
event he is satisfied with proportional participation in- 
cident to that improvement. In other words, commu- 
nity action determines the average of individual inter- 
ests, and secures the greatest good for the greatest 
number, which is the desideratum of organized so- 
ciety. 

Hence I again assert that because of the forces 
197 



THE INITIATIVE, REFERENDUM AND RECALL 

controlling all human action the people cannot under 
the initiative enact legislation against general welfare 
or in favor of any selfish interest, nor will they select 
any public servant who, in their opinion, will be domi- 
nated by any selfish interest. Though I grant they 
may make a mistake in selecting public servants, I 
assert that they will not make the same mistake twice 
in the same individual; that is, under an efficient direct 
primary law and corrupt practices act, the people will 
not renominate an individual who has failed to serve 
faithfully the community he represents. 

I have demonstrated that under the initiative and 
referendum the people cannot legislate against the gen- 
eral welfare, and by the same logic I assert that under 
the recall the people will never recall a public servant, 
judicial or otherwise, who serves the general welfare. 

To elucidate the subject, I shall give a few con- 
crete illustrations. Suppose that in a city of twenty- 
five thousand inhabitants, where there are four thou- 
sand voters, a private corporation owns the water 
system and charges exorbitant rates for the service. 
The self-interests of probably twenty thousand of the 
inhabitants would require municipal ownership of the 
water system as a means of improving the service and 
reducing the cost, but the self-interests of perhaps five 
thousand of the inhabitants require continuation of 
private ownership, because these individuals are either 
stockholders in the company, employees of the com- 
pany, recipients of business patronage from the com- 
pany, or political beneficiaries of the system of private 



A DEFENCE OF DIRECT LEGISLATION 

ownership. These few individual self-interests — un- 
der the existing system of convention, nomination, and 
legislation through a city council — are able, through 
control of the press and the manipulation of nomi- 
nations and municipal legislation, to prevent or delay 
the efforts of the vast majority to change the system 
to one of public ownership. 

Under the initiative, which would permit direct 
legislation on the subject, this question could be sub- 
mitted to a vote of all the qualified electors. Ap- 
plying the principle I have fully stated in the fore- 
going paragraphs, when this question came up for 
determination by the voters there would be conflict be- 
tween the self-interests of the individuals, but during 
the campaign preliminary to the election the subject 
would be discussed and considered in all its bearings. 
Each individual would make his own deductions as 
to his own self-interest and the general welfare of 
the community, with the result that selfish interest 
would be worn away and the greatest good for the 
greatest number secured. Unless a majority of the 
voters were convinced that public ownership would be 
to their interest, the proposal for public ownership 
would be defeated. 

I hear opponents of popular government asserting 
that the people might be misled and act unwisely on 
a question of this kind, and I reply that they are the 
best judges of their own self-interest and have a right 
as sovereign citizens to determine the policies of their 
government. They will, at least, act honestly, which 

199 



THE INITIATIVE, REFERENDUM AND RECALL 

cannot always be said for city councils influenced by 
the power of a public service corporation and pro- 
tected by the silence or active defence of a subsidized 
press. 

At this place in my discussion of the practical 
operation of popular government I deem it appro- 
priate to explain that this article is designed primarily 
as an answer to an article by Representative Samuel 
W. McCall. It is my endeavor, however, to make this 
article complete in itself, and I shall refer to Mr. Mc- 
Call's article only so far as is necessary in order to 
correct a few errors into which he has apparently 
fallen. 

The failure of Mr. McCall to comprehend the prac- 
tical operation of the initiative and referendum is il- 
lustrated by his reference to the Columbia River fish- 
eries legislation as a case in which the system worked 
unsatisfactorily. Evidently without knowing he was 
doing so, he cited an unquestionable instance of the 
elimination of selfishness and the substitution of gen- 
eral welfare. The case referred to was the submission 
of two Columbia River fishery bills to the people of 
Oregon in 1908. The rival fishing interests — the gill- 
net fishermen on the lower river and the fish-wheel 
operators on the upper river — had conducted their 
work so effectively as to threaten ruin of the industry 
by destruction of the fish before they could reach the 
natural spawning grounds. Almost every two years 
the rival fishing interests had carried their fight to the 
state legislature, and the legislature failed to enact 

200 



A DEFENCE OF DIRECT LEGISLATION 

any adequate legislation for the protection of the natu- 
ral supply of fish. The state was maintaining hatch- 
eries for the artificial propagation of salmon, but, not- 
withstanding the maintenance of this work, the fish 
supply was steadily diminishing. 

Believing that they could promote their own sel- 
fish interests and eliminate their rivals by resort to 
the initiative, the fish-wheel operators of the upper 
river proposed a bill practically prohibiting gill-net 
fishing on the lower river, and the gill-net fishermen 
proposed a bill prohibiting fish-wheel operations on the 
upper river. These two measures, each initiated by 
selfish interests, were submitted to a vote of the people. 
During the campaign the rival interests presented their 
arguments, not only through the publicity pamphlet, 
but through the newspapers and by circular letters. 
The people of the state gave the matter careful con- 
sideration, and, believing that the general welfare re- 
quired that the fish themselves be protected from ex- 
termination, they adopted both bills. 

The people having temporarily terminated fishing 
on the Columbia River, the legislature, which had 
heretofore failed to do its duty, responded to the 
popular will and enacted a law which permits fishing 
within reasonable regulations, but provides opportu- 
nity for the fish during closed seasons to reach their 
natural spawning grounds. I thank Mr. McCall for 
calling attention to this instance in which the com- 
posite citizen, acting under the initiative, eliminated 
selfish interests and substituted general welfare. 

14 201 



THE INITIATIVE, REFERENDUM AND RECALL 

Similar results are accomplished through the ref- 
erendum. Selfish interests are frequently able to in- 
fluence the individual members of a legislature to such 
an extent as to secure enactment of laws granting 
special privileges. On the other hand, there have been 
innumerable instances in which members of legisla- 
tures introduced bills attacking the business interests 
of large corporations, for the purpose of compelling 
such corporations to pay for the abandonment or de- 
feat of such bills. In the one case, selfish interests 
were able to buy legislation for their own benefit and 
against general welfare; while in the other case cor- 
rupt legislators had power to blackmail corporations. 
Such transactions are impossible where the refer- 
endum is in force, for the people have power to defeat 
grants of special privileges against general welfare; 
and if a corporation is unjustly attacked by a black- 
mailing bill, it can refuse to pay tribute and appeal 
directly to the people under the referendum, with full 
assurance that the people will not give their approval 
to legislation of that character. I believe every ob- 
server of legislative controversies involving the gen- 
eral welfare of state or city will agree that selfish 
interest frequently dominates individual action, where- 
as if community action had been possible, the result 
would have been advantageous to general welfare. 

The initiative affords any citizen who has evolved 
a solution of a governmental problem an opportunity 
for demonstration of its merits. Under a system of 
delegated legislation only, his ideas could be, and quite 

202 



A DEFENCE OF DIRECT LEGISLATION 

likely would be, referred to some committee where 
further action would be prevented through the influ- 
ence of selfish interest. Where the initiative exists he 
can present his ideas in the definite form of a proposed 
bill if eight per cent, of the legal voters consider it 
worthy of consideration and sign a petition for its 
submission to a popular vote. 

The system encourages every citizen, however 
humble his position, to study the problems of govern- 
ment, city and state, and to submit whatever solution 
he may evolve for the consideration and approval of 
others. The study of the measures and arguments 
printed in the publicity pamphlet is of immense edu- 
cational value. The system not only encourages the 
development of each individual, but tends to elevate 
the entire electorate to the plane of those who are 
most advanced. How different from the system so 
generally in force, which tends to discourage and sup- 
press the individual ! 

Speaking of the initiative and referendum, Mr. 
McCall says that, " In effect they propose the substi- 
tution of direct for representative government, the 
establishment of the direct action of the people, not 
merely in selecting their agents, but in framing and 
executing their laws." And again, " It is now pro- 
posed to abandon the discovery of modern times " 
(government by the people, acting not in person, but 
by representatives chosen by themselves). 

In view of the clear declaration of our initiative 
and referendum amendment, that " the legislative au- 

203 



THE INITIATIVE, REFERENDUM AND RECALL 

thority of the state shall be vested in a legislative as- 
sembly, but the people reserve to themselves power to 
propose laws and amendments to the constitution, and 
to enact or reject the same at the polls," my inclina- 
tion at first was to believe that the writer did not in- 
tend to convey the idea that representative government 
had been " abandoned " and direct government " sub- 
stituted " therefor; but this liberal construction of his 
language became impossible when I read the follow- 
ing in the same connection : 

" Is it for the interest of the individual members 
of our society to have the great mass of us pass upon 
the intricate details of legislation, to execute our laws, 
and to administer justice between man and man? 
That I believe to be in substance the question raised 
by the initiative, the referendum and the recall, as 
they are now practically applied in at least one of the 
states of the Union, the example of which is held up 
as a model to the other states." 

I deny unequivocally that in effect or in substance 
we in Oregon have abandoned representative govern- 
ment, or that the mass of the people pass upon the 
intricate details of legislation, execute the laws, or ad- 
minister justice between man and man. Let us con- 
sider the facts. At the last general election the people 
of Oregon voted upon thirty-two measures. Of these 
measures, eleven were constitutional amendments, of 
which four were adopted and seven rejected. Of the 
twenty-one bills submitted to the people only five were 
enacted, and sixteen rejected. The result of the direct 

204 



A DEFENCE OF DIRECT LEGISLATION 

vote was nine measures adopted. The Oregon legis- 
lature held a forty-day session last January, consid- 
ered seven hundred and twenty-five bills and two hun- 
dred and thirty-five resolutions or memorials. Two 
hundred and seventy-five of the bills were enacted. 
Evidently the extent of substitution of direct legisla- 
tion is indicated by the ratio of nine to two hundred 
and seventy-five. This is not exactly " abandonment " 
of the representative system. Of the relative merits 
of the two systems I shall say more later, but leave 
that. subject for the present in order to continue the 
denial of statements quoted above. 

I deny that the people of Oregon have executed 
the laws except through their duly chosen public 
servants. If the statement quoted is intended to apply 
to the recall, I reply by saying that there has been no 
exercise of the recall against any state, district, or 
county officer, though there was talk of recalling a 
circuit judge. I have no doubt that administrative 
officers have been influenced to some extent by the 
fact that they are subject to recall. That is one pur- 
pose of the recall. Experience with public officers 
from one ocean to the other justifies the belief that 
some of them will be influenced by the wishes of the 
men to whom they owe their positions and to whom 
they are accountable at the end of their terms. Under 
the former system of machine domination we learned 
that public officers were frequently influenced by the 
wishes of the political bosses, regardless of the inter- 
ests and wishes of the people. If they were influ- 

205 



THE INITIATIVE, REFERENDUM AND RECALL 

enced by the desires of men who put them into office 
tinder the old system, quite likely they are influenced 
by the wishes of the composite citizen, who gives 
them their positions under the new. The difference 
is that individual, selfish interest wielded the influ- 
ence under the old system, while under the new sys- 
tem the public officer knows that the people as a 
whole desire only a square deal and seek no special 
privileges. 

I deny that the mass of the people have been called 
upon to administer justice between man and man. 
Our courts have proceeded with their work as quietly 
and as deliberately as ever, though possibly with less 
delay. It would be impossible for the people of Ore- 
gon to administer justice between man and man in 
any case, for, though they have the power to recall a 
judge, they have no power to change the decision he 
has rendered. 

Mr. McCall says that "the prevailing fault of 
legislative bodies is political cowardice/' and that 
" the mania of the times is too much legislation and 
the tendency to regulate everybody and everything 
by artificial enactment. ,, 

Conclusive evidence that has been uncovered in 
numerous legislative investigations satisfies the people 
of the country that venality as well as cowardice is 
one of the faults of legislators. Neither venality nor 
cowardice can be charged against the voters of a com- 
monwealth except in those instances in which public 
affairs are so dominated by political bosses that the 

206 



A DEFENCE OF DIRECT LEGISLATION 

voter has no opportunity of exercising the right of 
selection of candidates. 

As I have explained on previous occasions, the 
wholesale bartering of votes in Adams County, Ohio, 
and Danville, Illinois, may be accounted for by the 
fact that for years the voters had been accustomed to 
mark their ballots for one of two candidates, each 
chosen for them by the operators of the political ma- 
chine. Having learned by experience that their votes 
were ineffective to overcome public evils, they decided 
that they might as well profit by the few dollars that 
they could secure for their votes, especially since the 
character of the public service would not be changed 
thereby. Whenever relieved from the domination of 
political machines and given opportunity to express 
an effective choice, the voters of any state will be 
guilty of neither venality nor cowardice, but will go 
to the polls and honestly express their opinions upon 
the questions submitted, and upon their preference as 
between candidates. 

As I have already shown, the last Oregon legis- 
lature enacted two hundred and seventy-five laws, 
while the people under the initiative and referendum 
adopted nine measures. If too much legislation con- 
stitutes a mania, as Mr. McCall says, then the evil 
must be charged to legislatures, and not to the system 
of direct legislation. 

On the whole, laws enacted by the people are more 
carefully prepared, more widely discussed, and more 
thoroughly considered than are the acts of a legisla- 

207 



THE INITIATIVE, REFERENDUM AND RECALL 

ture. A bill or proposed constitutional amendment 
submitted under the initiative must be filed with the 
secretary of state not less than four months before 
the election. Prior to that time the measure secures 
publicity through the fact that it must be circulated 
for the signatures of eight per cent, of the voters. 
After the bills have been filed, the promoters and op- 
ponents thereof may file arguments for or against. 
It is made the duty of the secretary of state to have a 
full copy of the title and text of each measure, to- 
gether with the arguments for and against, printed in 
a pamphlet, a copy of which must be mailed to every 
registered voter not less than fifty-five days prior to 
election. The title of a bill appears in the publicity 
pamphlet exactly as it will appear upon the ballot. In 
this way the voter secures the best possible informa- 
tion regarding the provisions of the bills, their merits 
or defects, the arguments for and against the meas- 
ures, and the reason why they should or should not be 
enacted. 

No such opportunity for the study of measures is 
afforded members of a legislature. The Oregon legis- 
lature, for instance, is in session only forty days, and 
members secure printed copies of the bills introduced 
no sooner than the end of the first week. Very fre- 
quently the important bills are introduced about the 
middle of the session and the members have copies of 
these before them for not more than twenty days. 
Amendments are frequent, and sometimes these are 
made as late as the day on which the bill is passed, so 

208 



A DEFENCE OF DIRECT LEGISLATION 

that legislators frequently vote upon bills without 
knowing their real effect. 

We had a conclusive demonstration of this in the 
Oregon legislature of 1903, when the legislature re- 
pealed a statute which allowed every householder a 
tax-exemption of household goods to the value of 
three hundred dollars. After the legislature ad- 
journed, members were astonished to learn that they 
had repealed such a law, and, at a special session, 
called within a year, this statute was re-enacted by an 
overwhelming vote. Not even Mr. McCall will con- 
tend that legislation such as this could be ignorantly 
passed under the initiative and referendum. Four 
months of discussion will, beyond peradventure, dis- 
close any serious fault or defect in any proposed 
statute submitted under the initiative. 

Some honest opponents of direct legislation base 
their opposition partly on the fact that a measure sub- 
mitted under the initiative is not susceptible of amend- 
ment after it has been filed in the office of the secre- 
tary of state. Instead of being cause for criticism, 
this is one of the strongest reasons for commenda- 
tion, for we have learned by experience that one of 
the most common methods by which vicious legisla- 
tion is secured is to introduce a harmless or a bene- 
ficial bill and let it secure a favorable report from a 
legislative committee, but with a slight amendment in- 
serted therein which entirely changes its character or 
effect in some important particular and thereby serves 
some selfish interest. When it is known that a bill 

209 



THE INITIATIVE, REFERENDUM AND RECALL 

must be enacted or rejected exactly as drawn, the 
framers of the measure will spend weeks and months 
in studying the subject and writing the bill in order 
to have it free from unsatisfactory features. 

In actual practice in Oregon almost every proposed 
bill is submitted to a considerable number of men for 
criticism and suggestions before its final form is de- 
termined upon. The original draft undergoes many 
amendments, and these are more carefully considered 
than would be the case if the bill were before a legis- 
lature. Knowing that the bill will be subjected to the 
closest scrutiny of all the people for four months, the 
framers of the bill, desiring its passage, naturally en- 
deavor to remove every reasonable objection, to make 
all its provisions perfectly clear, and especially to re- 
move every indication of bad faith. A bill to which 
there are many serious objections would stand little 
chance of adoption by a popular vote. When thus 
drawn and submitted, a bill is in the best possible 
form, and there is no possibility of its being made 
the instrument for the enactment of what are com- 
monly called " jokers." 

I do not contend that a bill thus drawn will be 
perfect, for no human work is perfect, but I do assert 
that it will be much better drawn than the great ma- 
jority of bills presented to a legislature; and, if 
adopted, it will be an improvement upon legislation 
theretofore in force on the same subject. The people 
of a state will never vote against their own interests, 
hence they will never vote to adopt a law unless it 

210 



A DEFENCE OF DIRECT LEGISLATION 

proposes a change for the improvement of the gen- 
eral welfare. Previous to the last election, each voter 
had fifty-five days in which to consider thirty-two 
measures, which, with the arguments for and against, 
were laid before him in convenient printed form. This 
gave him an average of nearly two days for the con- 
sideration of each measure. Assuming that many of 
the bills introduced in one house never appear in the 
other, each member of the Oregon legislature was 
called upon to consider about five hundred bills in 
forty days, or over twelve each day, besides being 
compelled to consider many resolutions, motions, and 
questions of a political character. I assert that the 
individual voters of the state, in the quiet of their 
own homes in the evening, could better consider and 
decide upon an average of one bill in two days than 
the members of the legislature, amid the hurry and 
strife and personal feeling incident to a legislative 
session, could consider and decide upon an average of 
twelve bills a day. 

It is frequently asserted that the voter in Oregon 
is required to pass upon thirty-two measures in the 
few minutes he occupies the booth on election day. 
Such is not the case. He has several weeks in which 
to determine how he will vote, and merely takes a few 
minutes in which to mark his ballot. 

In his discussion of the recall, particularly as ap- 
plied to judges, Mr. McCall has reiterated a prevail- 
ing error as to the practical operation of that feature 
of popular government. Evidently he has been mis- 

211 



THE INITIATIVE, REFERENDUM AND RECALL 

led by accepting as true certain statements contained 
in the President's veto message of the Arizona state- 
hood bill. He says, for instance, that, when the recall 
is invoked, the man whom the people have elected to 
an office is permitted either to resign in five days or 
to defend himself in two hundred words upon pro- 
ceedings to throw him out in disgrace. This state- 
ment is incorrect in two particulars. He may neither 
resign nor defend himself, but may quietly continue in 
office until his successor has been elected. He has 
three alternatives: either to resign, to stand for re- 
election, or to continue in office and await passively 
the outcome of the recall proceedings. If he chooses 
to defend himself, he is not limited to a defense of 
two hundred words. The two-hundred-word limit is 
merely upon the length of statement he may make to 
be printed upon the official ballot. This is merely a 
summary of his defense. He is at liberty to make 
such other defense before the people as he may de- 
sire. 

Moreover, the Arizona constitution, to which Mr. 
McCall refers, requires that the legislature shall pro- 
vide for the payment of the campaign expenses of 
any officer attacked under the recall. The man or 
men who attack an officer under the recall must pay 
the expense of their campaign. The man in office has 
not only the advantage of his official record, the pres- 
tige of his office, the desire of the American voter 
to give every incumbent of an office a square deal, 
but he has the further very material advantage of 

212 



A DEFENCE OF DIRECT LEGISLATION 

payment of his campaign expenses out of the public 
treasury. Any officer who is not able to make out a 
case in his own defense with all these advantages is 
very probably a fit subject for recall proceedings. 

Mr. McCall further states that it would be a mat- 
ter of no difficulty for the defeated candidate to initi- 
ate a recall and practically have the election over 
again. I challenge the citation of any instance in 
which experience has demonstrated that this criticism 
is justified. Experience in politics everywhere has 
demonstrated that the people admire a " good loser." 
They have contempt for the man who, after he has 
been beaten in a fair fight, refuses to quit. 

The recall amendment provides that a recall peti- 
tion shall not be circulated against any officer until 
he has actually held his office six months, except that 
a petition for recall of a member of the legislature 
may be filed five days after the legislature meets. 
Since a successful candidate takes office two months 
after election, and it would ordinarily require a month 
to circulate a recall petition, it is plain that there 
would be at least nine months for the subsidence of 
any personal feeling engendered during a campaign. 
Obviously a recall as to members of the legislature 
must be operative while the legislature is in session 
to be effective. 

Thus assured of an opportunity to demonstrate 
the character of service he will render, no public serv- 
ant need fear recall proceedings growing out of the 
campaign for his election, unless his election was se- 

213 



THE INITIATIVE, REFERENDUM AND RECALL 

cured by dishonest means. Of course, in such a case, 
a recall might be filed immediately after the expira- 
tion of the six months. This would be brought, not 
so much by the defeated candidate or his friends, as 
by citizens in general, whose right it is to have every 
election conducted fairly and honestly. 

The assumption that a recall proceeding is an im- 
position upon a public officer is not founded on good 
reason. An individual has no personal right to public 
office, though some few, who under delegated govern- 
ment have bought their offices, may think they have. 
The office belongs to the people, and they are entitled 
to have it filled by whomsoever they please. Every 
employer in private life reserves the right to discharge 
his employee whenever the service rendered is unsatis- 
factory. 

The same principle should apply to the electorate 
in the employment of a public servant. In fact, this 
right would be a matter of understanding and con- 
tract where a citizen seeks and accepts a public office 
with the knowledge that the recall is one of the laws 
of his state. 

Mr. McCall asserts that where the recall is in 
force " the judge, in order to feel secure in his office, 
would have to consult the popular omens rather than 
the sources of the law." Upon the same reasoning, 
where the convention system exists with a boss in 
control, the judge, in order to feel secure in his office, 
would consult the wishes of the boss rather than the 
sources of the law. There is this difference in favor 

214 



A DEFENCE OF DIRECT LEGISLATION 

of the influence of the recall — popular influence would 
be exerted in behalf of the welfare of the majority, 
whereas the influence of the political boss is exerted in 
behalf of the interests of a very small minority, which 
is generally himself or a campaign contributor. 

Some people express the fear that the rights of a 
minority will be disregarded by the tyranny of the 
majority. They are really most concerned for the 
perpetuation of special and unjust privileges for the 
small minority. Neither election nor appointment to a 
legislative, executive, or judicial office carries coinci- 
derut personal or official infallibility. 

There is very little weight to argument based upon 
allusion to the democracy of Athens, or to the experi- 
ence of other ancient nations which made more or less 
progress toward a popular form of government. In 
the last two thousand years conditions have greatly 
changed. Electricity and steam, the telegraph, tele- 
phone, railroad, and steamboat have established media 
of instantaneous intercommunication of ideas, and 
rapid cooperation of action in the individual units of 
society. 

In less than a decade the people of Oregon have 
voted upon sixty-four measures. Surely, if the initi- 
ative and referendum is a destructive system, as its 
enemies allege, there would be abundant evidence 
thereof in the recent history of that state; and it 
should not be difficult for any citizen to produce con- 
clusive and absolutely convincing evidence to that ef- 
fect. No one has done so or can do so. 

215 



THE INITIATIVE, REFERENDUM AND RECALL 

Both reason and experience demonstrate the prac- 
ticability and importance of the initiative and referen- 
dum. My analysis of the forces controlling all human 
action, as set forth in the early paragraphs of this ar- 
ticle, proves the impossibility of a community voting 
against the general welfare. Any person interested 
in the subject will observe by a study of results in 
Oregon that this has been demonstrated in that state. 1 

x See Appendix, p. 349. 



CHAPTER IX 

THE PRACTICAL WORKINGS OF THE INITIATIVE AND 

REFERENDUM IN OREGON 

At the Pittsburgh meeting of the National Munici- 
pal League, in 1909, Joseph N. Teal, Esq., of the 
Portland (Oregon) bar, presented the following ac- 
count of the practical workings of the initiative and 
referendum in Oregon : 

The exact date at which agitation for the initiative 
and referendum began in Oregon is somewhat uncer- 
tain. It has been stated that a paper published in Port- 
land some time from 1885 to 1888, called The Vidette, 
advocated the measure. Its first introduction into the 
legislative assembly was in 1893 in the form of a reso- 
lution introduced by Senator Vanderburg. Very few 
of the members at that time knew what the terms 
meant. At the session of 1895 the agitation took the 
form of a demand for a constitutional convention and 
was defeated by one vote. In 1897 there was no ses- 
sion. At the regular session of 1899 the amendment 
was passed for submission to the people by a large 
majority, and in 1901 it was passed for the second 
time and was submitted almost without opposition in 
the legislature. 

15 217 



THE INITIATIVE, REFERENDUM AND RECALL 

Formerly under our constitution all proposed 
amendments had to be passed by two successive legis- 
latures before submission to the people. This amend- 
ment was submitted to the people June 2, 1902, and 
received 62,024 affirmative votes, 5,668 being cast 
against it. At the election held June 6, 1906, it was 
applied to local, special and municipal laws. How- 
ever, the charter of the city of Portland, which was 
prepared by a charter board approved by the people at 
the election held in the month of June, 1902, and 
passed by the legislature at the session of 1903, con- 
tained provisions for the initiative. It has therefore 
been in operation in the state for seven years and in 
this city for six years. While the time it has been 
in operation is hardly long enough to develop all its 
advantages and disadvantages, yet its workings have 
been sufficiently observed to enable one to form some 
conclusion as to its merits and demerits. 

Although both powers are generally linked to- 
gether, they should be considered separately. One is 
a positive force, the other negative. The first stands 
for affirmative action, the second is a method devised 
for the veto of legislation the people do not approve. 
The consequence is that there is very much great- 
er opposition to the initiative than to the referen- 
dum. 

In my opinion, the causes which led to its adoption 
are the same that are in evidence throughout the coun- 
try generally. The people felt the government was 
getting away from them and they desired a more di- 

218 



IN OREGON 

rect control, both in the making of laws and in their 
enforcement, than they enjoyed. More potent, how- 
ever, than this was the failure of the legislature to 
respond to the demand of the people for the enactment 
of laws respecting the control of corporations, taxa- 
tion and kindred subjects affecting public interests. 
Boss-ridden legislatures and councils were the rule 
rather than the exception, and the people were tired 
of coaxing and pleading to secure desired legislation. 
Legislatures and councils were too often more solici- 
tous for special than for the public interests, and the 
people wanted to secure some effective and direct 
method of making their influence felt and their wishes 
respected. 

The difficulty in securing the enactment of the 
Australian ballot law and the registration law are 
examples of laws the people wanted, and which were 
enacted grudgingly and after long-continued agitation. 
Other important measures failed repeatedly to pass. 
The combined effect was to create a sentiment (as 
shown by the vote) overwhelmingly in favor of the 
new procedure. After its adoption tax laws and other 
public measures were proposed under it and passed, 
the consequence being that the same influences which 
prevented the passage of the same character of laws 
by the legislature are the deadliest foes of the initiative 
and referendum, although this is not to say that there 
are not very many good citizens who are opposed to it 
both on principle and in practice. Like all laws or new 
methods in government, experience has demonstrated 

219 



THE INITIATIVE, REFERENDUM AND RECALL 

that changes in some particulars are necessary. These 
I shall refer to later. 

While the powers reserved under the initiative and 
referendum have a restraining influence on the legis- 
lators and operate as a check on vicious, extravagant 
and special legislation, there is also a tendency to cause 
the legislator to feel less personal responsibility and to 
leave to the people matters on which he should act. It 
also provides what seems to some too easy and expe- 
ditious a method of submitting amendments to the 
constitution. Indeed, some claim that substantially we 
have no constitution left in the sense it is generally un- 
derstood. 

Formerly, it required not only a majority of those 
voting at an election, but a proposed amendment was 
required to be agreed to by a majority of all the mem- 
bers elected to each house in two successive legislative 
assemblies before submission to the people. Now an 
amendment may be proposed directly by the people 
and a majority of those voting on it at any general 
election is sufficient to carry the proposition. The 
initiative petition for the submission of an amendment 
must be filed with the secretary of state not less than 
four months before the election at which it is to be 
voted upon, and must be submitted at a regular elec- 
tion unless otherwise ordered by the legislative assem- 
bly. This direct method of amending the constitution 
unquestionably imposes very grave responsibilities 
upon the electors. 

When originally adopted it was generally thought 

220 



IN OREGON 

that only measures of great importance and of limited 
number would be submitted under the initiative. In 
practice it has been found that such is not the case, 
although this statement is subject to some qualifica- 
tions. Not unnaturally when it was first adopted quite 
a number of laws were proposed and nearly all car- 
ried, the enactment of which had been demanded over 
and over again by the people, only to be defeated by 
the legislature. In other words, it was but the inevita- 
ble result of the people having the power to carry out 
their will which had been hitherto thwarted by the 
failure of the legislators to act at all, or if they did act, 
to act adversely. It is also claimed that laws submitted 
under the initiative may be, and are sometimes, pre- 
pared from a biased or partisan standpoint, and thus 
are liable to be unfair, ill-considered, or poorly pre- 
pared, and, not being susceptible of amendment, must 
be adopted or rejected as presented. There is truth in 
this criticism. At the same time, there is considerable 
expense attached to submitting a law, and the people, 
if they understand it, will not support an unfair or 
one-sided measure. The chief difficulty in this respect, 
however, is in getting the facts before the public so 
that they understand them. A popular demand crystal- 
lized into the form of a law headed by a " catchy " 
title is too apt to receive favorable consideration, the 
details and imperfections being overlooked in the de- 
sire to obtain the ultimate purpose. 

Another objection is, that it takes too much of the 
time of the people in studying proposed legislation. 

221 



THE INITIATIVE, REFERENDUM AND RECALL 

On the other hand, it might be urged that to compel 
people generally to study and understand the condi- 
tions under which they are living could scarcely be 
called an objection. However, even if not necessary, 
it has been found advisable for organizations to issue 
statements to voters covering the questions to be sub- 
mitted. They generally consist of a short statement 
of the measure with the number on the ballot and the 
recommendations of the organization on the particu- 
lar question. The Taxpayers' League of this city has 
been especially active in this work, but it can be readily 
understood that the printing and circulating of these 
statements and reports costs considerable money and 
with two elections every year, one the city, the other 
the state and county, it keeps those interested pretty 
busy. 

I think the foregoing are the chief objections to 
the initiative, except such as are urged by those who 
are opposed to it on principle, or by the conservatives 
who view with alarm changes in any direction, or by 
those who wish to limit rather than enlarge either the 
powers or the responsibilities of the people as a whole. 
On the other hand, the initiative places in the hands of 
the people the power to inaugurate such reforms, 
changes of policy or to enact such laws as they may de- 
sire or believe to be to their best interests. A num- 
ber of changes have been suggested, amongst them 
being the following : 

i . To provide that a larger number of petitioners 
should be required to have a measure submitted than 



IN OREGON 

is now provided by law. Eight per cent, of the legal 
voters are now required to propose any measure by 
petition. 

2. To have initiative measures first submitted to 
the legislature with the right to pass upon them or to 
amend them, and if amended to submit the alternative 
proposition to the people. Such an amendment has 
been prepared by friends of the initiative and is now 
under public consideration. 

3. To limit the number of constitutional amend- 
ments or laws that may be submitted to vote at any 
one election. 

4. To limit the 1 abject matter to a single proposi- 
tion in concrete form. 

5. It has also been suggested that the initiative 
be confined to bills that have been introduced and 
failed to pass in the legislature and those that have 
been vetoed by the governor. 

Except number 2, so far as I am aware, none of 
the other suggested amendments has been reduced to 
writing or prepared for public discussion. 

The referendum is felt to be of great value in oper- 
ating as preventive of special, extravagant or other- 
wise obnoxious legislation. This power operates as a 
strong deterrent against extravagant legislation or 
that favorable to special interests. The indiscriminate 
granting of franchises, the bartering away of public 
rights and the granting of special privileges of all 
kinds which have been so prolific of corruption in the 
past, would not have been indulged in to the extent 

223 



THE INITIATIVE, REFERENDUM AND RECALL 

they have, had the people always reserved this power. 
There is but little criticism of the referendum. About 
the only change suggested is to provide for a larger 
number of petitioners. 

It could hardly be said that the people have not 
voted intelligently upon measures that have been sub- 
mitted for their consideration. Moreover, nearly all 
the laws passed by the people, though possibly differ- 
ing in language or construction, have been rejected by 
the legislature. The following list is illustrative of 
measures submitted and votes cast thereon: 

19o6 Yes No 

Equal suffrage 36,928 46,971 

To amend local option law 35,397 45,144 

To purchase a private toll road 31,525 44,525 

For initiative and referendum on local, special and 

municipal laws 47,778 16,735 

Prohibiting free passes (no enacting clause) 57,28 1 16,779 

Requiring sleeping car, refrigerator car, and oil 
companies to pay annual license upon gross 

earnings 69,635 6,440 

Requiring express, telegraph and telephone com- 
panies to pay annual license upon gross 

earnings 70,872 6,360 

It will be noted that the act prohibiting free passes 
had no enacting clause and in consequence failed to 
become a law. The act to regulate transportation and 
commerce, etc., was passed at the legislative session 
of 1907. Certain provisions of this act, in effect, pro- 
hibited the giving of free transportation. 

Notwithstanding the vote of the people but recently 
cast upon the question, the legislature at the same ses- 
sion passed an act requiring the railroads to grant free 

224 



IN OREGON 

transportation to state and county officials as a consid- 
eration precedent to acquiring land for corporate pur- 
poses by the exercise of eminent domain. A referen- 
dum was called upon this act, and at the election of 
1908 the law was defeated by a vote of 59,406 to 
28,856. This exemplifies the use to which the referen- 
dum may be put and is an excellent illustration why it 
is extremely unlikely that it will be repealed. 

A referendum was also called on an appropriation 
made for the state university. The appropriation was 
sustained by a vote of 44,115 to 40,535. This refer- 
endum is occasionally referred to as an illustration of 
its dangers. Personally, I do not view it in that way, 
as I think the discussion that followed, and the better 
understanding the people in the end had of the subject, 
did good rather than harm. I might add that the large 
negative vote does not really represent the feelings of 
our people toward the state university. A number of 
local conditions and issues swelled this vote, and I 
think I am safe in saying that the people of the state 
generally take a justifiable pride in this institution, 
which, I am glad to say, is growing in strength and 
influence all the time. 

Among the measures submitted in 1908, and de- 
feated, were the following : 

Increasing the compensation of members of the 
legislature to $400 for a regular session, and ten dol- 
lars per day for each extra session, instead of three 
dollars per day and mileage ; 

An amendment increasing the number of judges of 
225 



THE INITIATIVE, REFERENDUM AND RECALL 

the supreme court, and changing the jurisdiction of 
certain other courts ; 

An act appropriating $25,000 annually for four 
years for purchasing grounds and building armories 
for the use of the Oregon National Guard ; 

Equal suffrage amendment; 

Giving cities and towns within their corporate 
limits additional and exclusive power to license and 
control or prohibit theatres, race tracks, and the sale 
of liquor, etc. This proposal was considered to be 
something in the nature of a trick to avoid the effect of 
the local option law, and received 39,442 affirmative 
and 52,346 negative votes; 

The single tax amendment was defeated by a vote 
of 60,871 to 32,066. 

The following measures were carried : 

Permitting the location of state institutions, else- 
where than at the seat of government, by act of legis- 
lature and vote of the people; 

Changing the time of holding the regular general 
biennial election from the first Monday in June to the 
Tuesday after the first Monday in November. 

Two laws prohibiting fishing for salmon, etc., were 
both passed ; one was known as the " Up River Bill," 
the other as the " Down River Bill." The effect of 
the passage of both laws was to prohibit the taking of 
salmon at all, although such was not the intention of 
the proposers. Each only wanted to restrain its rival. 
While on its face it would indicate that the vote cast 
is evidence of the confusion that may result from the 

226 



IN OREGON 

use of the initiative, yet, if the subject were understood 
as we understand it here, the result is not surprising. 
Moreover, it is not uncommon to find contradictory 
laws as well as acts having irreconcilable provisions 
passed by the legislature. 

In the report of the Oregon Conservation Commis- 
sion of 1908, the committee who prepared the paper 
on the salmon industry in connection with this vote, 
said: 

" There is some antagonism among the operators 
of any kind of gear against any other. Between the 
gill-netters of the lower and the wheelmen of the upper 
river, this rises to open hostility. Opposing delega- 
tions have met before the legislature for many years 
and each party has succeeded in blocking legislation 
proposed by the others. At last election (in June, 
1908), each party had its bill, proposed under the 
initiative, each legislating the other's method of de- 
struction and preserving its own. The electors, in an 
excess of disgust, tinged with sardonic humor, passed 
both bills by different but decisive majorities. The 
laws thus passed, taken together, practically prohibit 
fishing by either method so far as the legislation of this 
state alone was competent to do so." 

The recall was adopted by a decisive majority. 

A law instructing the members of the legislature to 
vote for and elect the candidate for United States sen- 
ator who receives the highest number of votes at the 
general election, was adopted at the polls by a vote of 
69,668 to 21,162. 

227 



THE INITIATIVE, REFERENDUM AND RECALL 

An act authorizing the legislature to provide for 
proportionate representation passed by a large vote. 

The " Corrupt Practices " act also passed by a 
heavy majority. This act is very long, and, while its 
object is good, it is exceedingly complicated, and it is 
doubtful if some of its provisions can or should be 
enforced. There is no question, however, but that its 
operation was noticeable at elections following its 
adoption, and it certainly had a marked effect for the 
better. 

A constitutional amendment was also passed pro- 
viding that no person can be charged in the circuit 
court with a commission of a crime or misdemeanor 
except upon indictment found by a grand jury. Prior 
to the passage of this act, the district attorney could, 
upon his own investigation, file an information which 
in effect was an indictment. 

An analysis of the measures submitted and the vote 
of the people thereon would indicate that there is noth- 
ing in the vote on these measures which would justify 
condemnation of the law or fear of its consequences. 

At the city election held in June this year there 
were thirty-five measures submitted to the people. As 
the number of measures submitted at this election is 
often used as a " horrible example " of what the initia- 
tive and referendum may lead to, simple justice de- 
mands that the facts be stated. There were thirty-five 
questions submitted. Of these twenty-five were pro- 
posed amendments to the charter, which can be 
changed only by a vote of the people. Of these three 



IN OREGON 

were submitted by a charter board appointed for the 
purpose of submitting a new charter or amendments 
to the existing charter; twenty-two were submitted by 
the council direct, or upon the advice of a committee 
of seven citizens appointed to propose changes; and 
none by petition through the initiative. 

Nine ordinances were submitted. Of these two 
were submitted by the council and seven by the initia- 
tive petition. One referendum was called against an 
ordinance passed by the council. It will thus be seen 
that the people, through the initiative and referendum, 
were directly responsible for eight of the measures 
submitted. However, it is but fair to say that a num- 
ber of the others should have, and probably would 
have, been submitted had not the council acted. 

Many of the charter amendments were of slight 
importance, but as before stated, as the charter can 
only be changed by a vote of the people, they had to be 
submitted. Others were of great importance. A com- 
mission form of government was defeated by a vote 
of 10,770 to 4,903. A municipal electric light plant 
was proposed. It was defeated by 9,684 to 6,039. 
Proposed ordinances granting to a Gothenburg Asso- 
ciation the exclusive right to sell spirituous liquors in 
the city of Portland and a rather stringent excise or- 
dinance were both badly defeated. An amendment- 
requiring franchise holders to keep accessible accounts 
and report to the city auditor carried by a vote of 
10,302 in its favor and 4,444 against it. Twenty-seven 
of its recommendations were adopted, and eight were 

229 



THE INITIATIVE, REFERENDUM AND RECALL 

not. Of the eight, two at least were of no particular 
importance. 

In my opinion, a proposition in this state to repeal 
the initiative and referendum, notwithstanding certain 
defects and disadvantages, would meet with defeat. 
In the future defects may develop that will provoke a 
repeal, but this I doubt. On the contrary, I think it 
much more probable that the defects will be remedied, 
and the axe will not be laid at the root of the tree. It 
is true that the initiative and referendum is a radical 
departure from our former practices and imposes a 
grave responsibility upon the people. Thus far, on 
the whole, they have fully met this burden, and in my 
opinion it has worked for good; and nothing is of 
more importance in a government such as ours than to 
place responsibility directly upon the people. It is my 
belief that they can be trusted to act upon measures 
that may be submitted to them, and that as a whole 
they will act fairly and justly if they understand them. 
They may be deceived, but I do not believe any con- 
siderable number of people will knowingly be unjust 
or unfair, or act otherwise than as they believe to 
be to the interest of the community. 

I do not desire to make any comparisons between 
laws passed by the legislature and those passed by the 
people direct, but the comparison, if made, would not 
be unfavorable to those passed through the initiative. 
While I favor and still favor the initiative and refer- 
endum, I am not a partisan or special pleader for it, 
and if I believed or was convinced that it worked for 

230 



IN OREGON 

harm rather than for good, I would say so, and urge 
its repeal. At times measures are suggested and action 
taken thereon that create some doubt as to the wisdom 
of the procedure, but when one thinks of what went 
on under the old system, and how indifferent and 
worse than indifferent legislatures have been and are 
both as to the rights and demands of the people, one 
feels that a mistake now and then does not justify a 
wholesale condemnation of the new system. It is 
urged that the people without this law have the power 
to elect only honest and qualified men to office, and 
therefore there is no occasion to inaugurate what ap- 
pears to some people to be a revolutionary programme. 
This may be true, but to have a concurrent remedy 
can do no harm. Let the people elect honest men, let 
them also retain the power reserved in the initiative 
and referendum. Its benefits will then be not in its 
use, but rather in its potentiality. 

I have been asked to discuss the effectiveness of the 
initiative and referendum as instruments for securing 
a democratic government; but I am sure that any 
academic discussion of this question would be unprofit- 
able. There are two lines of thought: one holding 
that it is destructive of, the other that it is an aid of a 
democratic form of government. It is asserted that 
under it a state does not enjoy the character of govern- 
ment guaranteed by the constitution of the United 
States, and a case involving this point is now pending 
in the supreme court of the United States on appeal 
from the supreme court of Oregon. However, thus 

231 



THE INITIATIVE, REFERENDUM AND RECALL 

far the courts have held, including the supreme court 
of this state, that the initiative and referendum as 
adopted in this state are not contrary to the provisions 
of the constitution of the United States guaranteeing 
a republican form of government. 

It is also asserted that the only method by which 
our character of government can be maintained is 
through representatives chosen by the people. Very 
earnest and able men support both views, but speaking 
from our experience thus far, it is my opinion that the 
initiative and referendum tend to secure more demo- 
cratic government, if by that term is meant government 
by the people and for the people, than does the purely 
representative form. A number of laws and amend- 
ments to the constitution have been approved by the 
people when proposed by initiative petition after the 
same measures had been rejected by the legislature, 
and are some evidence of the truth of this statement. 



CHAPTER X 

A YEAR OF THE PEOPLE'S RULE IN OREGON" (19IO) 1 

The past year has been one of great political ac- 
tivity in Oregon. Observers at a distance may have 
entertained the notion that, with the securing of the 
initiative, the referendum and the recall, not to speak 
of the direct primary and a genuinely popular election 
of senators, all pressing problems had been solved, 
and that these devices of the new institutional democ- 
racy would now be subjected to years of quiet testing. 
Little did they understand the spirit of the Oregon 
leaders. The men who had championed direct legisla- 
tion and kindred institutions in that state were by no 
means disposed to rest content. The triumphs they 
had secured had come singly, in laws neither entirely 
consistent with each other nor with other parts of the 
governmental machinery as yet untouched. Accord- 
ingly, fifteen months in advance of the general election 
of 1910, they set about devising a system whereby the 
conduct of state and county government might " be 
made as efficient and economical as the management 

*By Professor George H. Haynes. Reprinted from Political 
Science Quarterly, Vol. XXVI, No. I. 

16 2 33 



THE INITIATIVE, REFERENDUM AND RECALL 

by citizens of their private business." Such was the 
ambitious aspiration which prefaced a series of pro- 
posals, printed in an edition of 7,500 copies and dis- 
tributed in midsummer, 1909, accompanied by a letter 
of explanation signed by eighteen men whose names 
are familiar as sponsors of the direct legislation meas- 
ures of the past decade. These documents were sent 
to thousands of representative voters of Oregon and 
also to interested correspondents in other and distant 
states, for the purpose of obtaining opinions regarding 
the wisdom of the scheme. The proposals thus cir- 
culated were: to submit, by initiative petition, at the 
election in November, 1910, a bill for the publication 
of an " Official Gazette," and four constitutional 
amendments, the first of which aimed to systematize 
the exercise of the legislative power within the state; 
the second, to centralize administrative responsibility 
on the models of the business corporation and of the 
federal executive ; the third, to secure a similar centrali- 
zation of responsibility in county government; and 
the fourth, to secure certain reforms in the state judi- 
ciary. Throughout them all, the avowed purpose was 
to ".maintain the people's direct and supreme power, 
by the initiative, referendum and recall, to make laws 
and discharge the public officers as well as elect them " ; 
and the intention was announced of forming a " Peo- 
ple's Progressive Government League " of four or five 
hundred citizens, to present such measures as might be 
agreed upon. 

In January, 19 10, under the same auspices, a sec- 
234 



YEAR OF PEOPLE'S RULE IN OREGON 

ond pamphlet was issued, in which the proposals be- 
fore advanced were restated and modified in accordance 
with the criticisms and suggestions which they had 
elicited. Some clauses were cut out; some new fea- 
tures were stressed; and much space was devoted to 
argument upholding the theory and practice of " peo- 
ple's rule." Some months later there were circulated, 
for signatures, four initiative petitions, in the elaborate 
form prescribed by law, prepared by the " People's 
Power League." The two most radical projects — 
those designed to centralize administration in the state 
and in the county — were omitted, for signs of reac- 
tionary revolt were multiplying, and it was deemed 
wise to concentrate the campaign. 

The first place was given to a bill to extend the 
Direct Primary Nominating Elections Law so as to 
include presidential campaigns and nominations. 1 This 
measure provided that in the year of a presidential 
campaign, on the forty-fifth day before the first Mon- 
day in June, there should be held the Oregon primary 
nominating election, at which every voter should have 
the opportunity to " vote his preference . . . for 
his choice for one person to be the candidate of his 
political party for president, and one person to be the 
candidate of his political party for vice-president of 
the United States," either by writing the names of 
such persons in blank spaces or by making a cross 
before the printed names of the persons of his choice. 

1 Adopted by the people, infra, p. 272. 
235 



THE INITIATIVE, REFERENDUM AND RECALL 

At this election votes might be cast also for delegates 
to the national nominating convention and for presi- 
dential electors, by a method intended to secure pro- 
portional representation. The expenses of the men 
thus selected as delegates to the national conventions 
were to be paid from the state treasury, up to the limit 
of $200 for each delegate. The proposed law accorded 
to each person regularly nominated for president or 
vice-president of the United States by a political party 
recognized as such by the laws of Oregon, the use, 
gratis, of four pages in the state campaign book, 
wherein he, or his duly accredited representatives or 
supporters, might set forth the reasons why he should 
be elected. Equal spaces were made available to per- 
sons nominated to be delegates to a national conven- 
tion or presidential electors, and to any qualified elector 
of a political party who might favor or oppose the 
nomination of any person of his own political party as 
its candidate for president or vice-president; but each 
of these unprivileged characters was to pay at the rate 
of $100 a page for this " leave to print " — a regula- 
tion which might with excellent effect be applied to 
post-mortem issues of the Congressional Record. 

A second constitutional amendment put forward 
by the People's Power League proposed certain 
changes in the state judiciary. 1 It provided that the 
judges of all courts should be elected for a term of 
six years ; allowed the supreme court in its discretion to 

1 Adopted by the people, infra, p. 273. 
236 



YEAR OF PEOPLE'S RULE IN OREGON 

take original jurisdiction in mandamus, quo warranto 
and habeas corpus proceedings; and introduced the 
provision that " in civil cases three-fourths of the jury 
may render a verdict." It prohibited re-trial of any 
case, " unless the court can affirmatively say there is 
no evidence to support the verdict." In case of an 
appeal, it provided for affirmance of judgment not- 
withstanding any error committed during the trial, pro- 
vided the supreme court was of the opinion that the 
judgment was such as should have been rendered; and 
it directed that, if the supreme court should be of the 
opinion that it could determine what judgment should 
have been entered in the court below, it should enter 
such judgment. As originally proposed, this measure 
provided that " only such opinions of the supreme 
court shall be printed as decide new questions of law, 
or the meaning and construction of the statutes and 
the constitution of Oregon and of the United States, 
or that reverse former decisions of the court." But 
that provision was pruned down to the following: 
" At the close of each term, the judges shall file with 
the secretary of state concise written statements of the 
decisions made at that term." This amendment left 
unchanged an unusual feature of the Oregon constitu- 
tion : " Public officers shall not be impeached ; but in- 
competency, corruption, malfeasance or delinquency in 
office may be tried in the same manner as criminal of- 
fenses, and judgment may be given of dismissal from 
office and such further punishment as may have been 
prescribed by law." 

237 



THE INITIATIVE, REFERENDUM AND RECALL 

A project more characteristic of the " people's 
rule " movement was a further measure, which was 
proposed by initiative petition, providing for the es- 
tablishment of a board of three " people's inspectors 
of government," 1 to be elected for a term of two years 
by a method intended to secure proportional represen- 
tation. These censors were to devote their time ex- 
clusively to the performance of their official duties. 
They were " to have at least one of their number pres- 
ent at all times at every session of each house of the 
legislative assembly, and to be watchful for any defect 
or imperfection in the state and local systems of gov- 
ernment." Upon demand of one member, the board 
was required to investigate and report on the man- 
agement of any public office or any institution sup- 
ported wholly or in part by public funds; and wide 
powers were given to the board in order to enable it 
to ascertain facts pertinent to its inquiry. The re- 
sults of such investigation were to be published in 
the Oregon Official Gazette, a publication which was 
to be issued at least every two months, and was to 
be mailed at public expense to " every head of a family 
who is a registered voter, and every registered voter 
who is not a member of a family." To others, the 
subscription price was fixed at one dollar a year. The 
proposed law required the board to publish in the 
Gazette, without unnecessary delay, not only their 
own reports but a great variety of specified documents 

1 Rejected by the people, infra, p. 271. 
238 



YEAR OF PEOPLE'S RULE IN OREGON 

relative to government, e. g. " all publications that 
may be required by law to be mailed to every regis- 
tered voter." 1 Every department of the state or of 
any county or municipal government therein was to be 
subjected to the scrutiny of the inspectors. The pro- 
posed law insisted that such investigation and publica- 
tion should be " solely for the information of the peo- 
ple without motive or desire for personal or partisan 
advantage," and forbade the publishing of " any mali- 
cious, libelous or personally abusive communication " ; 
it was, however, specifically required that they should 
publish " any criticisms or complaints, not exceeding 
two hundred words each, of their own official acts." 
The law provided that these inspectors should be 
elected biennially, beginning in 1912. For service be- 
fore that date, a temporary board was to be appointed 
by the governor. He was to call for three recom- 
mendations of nominees from each of the following 
bodies : the executive committee of the State Grange, 
the executive committee of the Oregon State Federa- 
tion of Labor and an assembly of the presidents of the 
boards of trade and commercial organizations of the 
state ; and he was to name as a member of this tempo- 
rary board one of the three nominees submitted by 
each of these bodies. If the framers of the bill put 
this forward as a model for future boards, it is of in- 

* If the Oregon Campaign Book could thus be brought out as an 
issue of an official gazette, it would be entitled to second class postal 
rates. On the last issue, that would have involved a saving to the 
state treasury of about $2,500. 

239 



THE INITIATIVE, REFERENDUM AND RECALL 

terest to note the proportionate influence here allotted 
to different elements in the population in the forming 
and executing of public opinion. 

By some accident no specific salary for the inspec- 
tors was mentioned, although it was expressly declared 
that the board " shall not apply to the legislative as- 
sembly for any appropriation. It is intended that these 
inspectors shall be independent of all other officers and 
powers, except the people of Oregon." The sum of 
not more than $15,000 was to be expended by them 
for expert accountants and other assistants in making 
investigations, but the total expense incurred for sala- 
ries and other charges of the board and for the pub- 
lication of the official Gazette was not to exceed the 
sum of one dollar for each registered voter in Oregon. 
In the original proposal and in the revised proposal 
of January, 191 o, was a provision giving the inspec- 
tors a certain discretion in determining what matter 
should be admitted to the Gazette free of charge, viz.: 
" If any citizen or officer shall offer a communication 
which the board does not consider of sufficient inter- 
est for publication, he may pay at reasonable column 
rates, to be fixed by the board, for the publication of 
not exceeding three columns in any issue." This pro- 
vision did not appear in the measure finally submitted, 
in which the inspectors were apparently required to 
insert any communication which a citizen might sub- 
mit, unless they could exclude it on the ground that it 
was " malicious, libelous or personally abusive," or, 
possibly, on the ground that, after publishing the official 

240 



YEAR OF PEOPLE'S RULE IN OREGON 

material mentioned or indicated in the law, they would 
not be able to print the citizen's contribution without 
exceeding the limitation imposed upon their total ex- 
penditures. 

By far the most elaborate and important, however, 
of the measures put forward by the People's Power 
League was one which contemplated a systematic re- 
constitution of the legislative power and which also 
was proposed by initiative petition. 1 By piecemeal and 
unrelated acts of legislation, Oregon — followed by 
quite a number of other American states — has patched 
the new cloth of the initiative and referendum upon 
the old garment of its constitution. Here at last was 
a project which, in the opinion of its advocates (who 
have been the successful champions of direct legisla- 
tion), would establish logical and effective relations 
between the law-making work of the people at the polls 
and that of the representative legislature. 

At the outset, this proposed constitutional amend- 
ment formulated the powers reserved by the people to 
themselves, namely, the initiative and the referendum. 
Initiative measures should be put before the people on 
demand of not more than eight per cent, or, at the 
most, 50,000 of the legal voters, and should be filed 
with the secretary of state at least four months before 
the election at which they were to be voted on. The 
referendum must be applied to any constitutional 
amendment, and might be ordered upon any act of 
, — . — , — , —4 

1 Rejected by the people infra p. 272. 
241 



THE INITIATIVE, REFERENDUM AND RECALL 

the legislature by five per cent, or, at the most, by 
not more than 30,000 of the legal voters. It might be 
applied to individual items of acts of the legislature; 
and any increase in appropriations for the maintenance 
of the state government or of the institutions sup- 
ported by state funds was to be subject thereto. In 
order that the referendum might have full scope, it was 
provided that, except in cases of emergency, no act of 
the legislature should take effect until ninety days from 
the end of the session at which it was passed. Inas- 
much, however, as three months' delay might at times 
prove disastrous, it was provided that any measure 
(except one creating or abolishing some office or 
changing the salary, term or duties of some officer) 
should go into effect immediately upon its passage, 
provided three-fourths of all the members elected to 
each house " shall vote, on a separate roll-call, in favor 
of the measure going into instant operation because 
it is necessary for the immediate preservation of the 
public peace, health and safety." Even such a measure 
might be annulled by a subsequent referendum, but it 
was to remain in force until the adverse vote should 
be declared. It was further provided that no measure 
approved by vote of the people could be repealed or 
amended by the legislative assembly, except by three- 
fourths vote of all the members elected thereto. Pro- 
vision was also made for the use of the initiative and 
referendum under similar conditions in municipal af- 
fairs. 

The make-up and powers of the representative leg- 
242 



YEAR OF PEOPLE'S RULE IN OREGON 

islature were next set forth. The numbers were to 
remain unchanged: thirty members of the senate and 
sixty of the house. These were to be chosen from 
such districts, composed of contiguous territory, as 
should be provided by law; but residence within the 
district was not required. On the one hand, the mem- 
ber's position was substantially strengthened by in- 
creasing the term of senators from four to six years 
and that of representatives from two to six years; but 
this was offset by the recall, which, on demand of 
twenty-five per cent, of the voters, might be invoked 
not Only against an individual member but against the 
senate or the house or the entire legislative assembly. 
Recall petitions must state in not more than two hun- 
dred words the reasons for such action. The filing of 
a recall petition requiring a general election — in other 
words, the formal initiation of a measure to " turn 
all the rascals out " — was to operate as " a complete 
suspension of all the power granted by the people of 
Oregon to the legislative assembly," until the returns 
should be determined. 

The members of both houses of the legislature 
were to be elected by a novel system of proportional 
representation, the intent being that any one-sixtieth 
of all the voters of the state, voting for one person 
for representative, should elect him and that any one- 
thirtieth should be enabled to elect their candidate for 
the senate. The nomination was to be by districts, 
but the election by the voters of the state at large. 
Each candidate's name, whether for the senate or for 

243 



THE INITIATIVE, REFERENDUM AND RECALL 

the house, was to be printed on the ballot only in 
the district in which he should be nominated ; but any 
legal voter in any other district might vote for him 
by writing his name upon the ballot or by using a 
sticker. Each voter, however, was to vote for only 
one candidate for senator and one for representative. 
No candidate for nomination was to be permitted to 
circulate his petition or pay for its circulation outside 
of the nominating district in which he resided. At 
the general election, each candidate for the legislature 
was to be entitled to have printed on the official ballot 
against his name his " platformette " — a statement in 
not more than twelve words of his political faith or of 
his pledges to the people. 

In counting the vote, the total number of votes 
cast for senators was to be divided by thirty and that 
cast for representatives by sixty, the resultant numbers 
fixing the " quota of election " for each. Then the 
whole number of votes received by all the candidates 
of each party was to be divided by this quota of elec- 
tion; the quotient for each party was to indicate the 
number of representatives' (or senators') seats to 
which that party was to be entitled; and that number 
of party candidates who should have received, each 
for himself, the full quota or nearest to the full quota 
of votes should be thereby elected. Any independent 
candidate who should receive for himself a quota of 
votes, or a number greater than the highest remainder 
of any party, should be thereby elected. 

It is evident that the Swiss free-list system had re- 
244 



YEAR OF PEOPLE'S RULE IN OREGON 

ceived careful study. It was assumed that in most 
districts candidates of the more prominent parties 
would be put forward, but that a single-taxer or 
socialist, if of strongly marked personality or power 
of leadership, might so enlist the loyalty of supporters 
all over the state that they would substitute his name 
for those of the candidates nominated in their own dis- 
tricts. In making state-wide the constituency from 
which representatives were to be chosen, proportional 
representation would have been subjected to a severe 
strain. In the writer's opinion, the chances of its sat- 
isfactory working would be greatly increased if it 
were applied to districts electing not more than from 
five to ten members. 

Vacancies, except those created by the recall, were 
to be filled by " seating the qualified candidate from 
the same party as that of the retiring officer who re- 
ceived for himself nearer to the quota of votes than 
any other candidate of his party who was not elected." 
This procedure is open to obvious and serious objec- 
tion, particularly in view of the proposed term of six 
years — a term longer than that accorded to a legislator 
in any other American state. Party complexion may 
undergo great changes in such a period. There is lit- 
tle assurance that a Democrat who narrowly escaped 
election in 1892 would, by virtue of that fact, have 
been an acceptable Democratic representative in 1897. 
Republicans of the vintage of 1897 or of 1907 might 
need to be re-certified in 1900 or in 19 10. Another 
defect lay upon the surface : district nomination was 

245 



THE INITIATIVE, REFERENDUM AND RECALL 

required although district residence was not. Doubt- 
less, in nine cases out of ten, the representative would 
be a resident of his own district. But in case such a 
representative should die or resign during the course 
of his six years' term, his place would be filled auto- 
matically by the man of his party name who, possibly 
five years earlier and necessarily in another district, 
happened to have escaped election by the narrowest 
margin. In short, both this form of proportional rep- 
resentation and this method of filling vacancies are at 
fault in over-emphasizing party lines. In state rela- 
tions national party lines have only a secondary and 
minor justification; and yet, under this plan, the party 
label was to determine who should fill a vacancy long 
years after the label's significance might have been 
utterly lost. 

No distinction was made in the qualifications for 
membership in the two houses; the candidate must be 
a citizen of the United States, at least twenty-one 
years of age, and a resident of the state for at least 
five years before his election. It was proposed, how- 
ever, to make a substantial increase in the compensa- 
tion of the legislators. Under the present law it is 
not more than three dollars a day, with the further 
stipulation that the entire per diem allowance shall not 
exceed $120 in any one regular biennial session. Under 
the proposed measure each member was to receive 
an annual salary of $350, together with a mileage al- 
lowance. Each house was to choose its own officers 
and standing committees; but the presiding officers, 

246 



YEAR OF PEOPLE'S RULE IN OREGON 

though elected by their respective houses, " shall not 
be members of the legislative assembly, nor hold any 
other office at the same time. They shall not appoint 
committees, and shall have no voice or vote on legis- 
lative business." Evidently " Cannonism " was not ap- 
proved by the framers of this project. Two-thirds of 
each house was the exceptionally large quorum re- 
quired to do business; in case either house should fail 
to effect an organization within five days after such 
quorum should be in attendance, its members were to 
receive no compensation from the end of the said five 
days 'until an organization should have been effected. 
This, however, would not prevent the recurrence of 
the experience of 1897, when throughout the time ap- 
pointed for the session the legislature failed to effect 
an organization because the requisite quorum never 
appeared. 

A majority of all the members elected to each 
house was to be necessary to pass any bill. The yeas 
and nays must be entered at the request of any two 
members on any question except a motion to adjourn 
— on which the demand must be supported by one- 
tenth of those present. Strangely out of date and 
empty of significance in this radical measure sounds 
the familiar restriction that bills for raising revenue 
should originate in the lower house. There was a 
formidable list of acts excluded from the competence 
of the legislative assembly, with no less than sixteen 
items, including the enactment of " any local or general 
law extending or granting the power of eminent do- 

247 



THE INITIATIVE, REFERENDUM AND RECALL 

main to private corporations." Painstaking effort was 
put forth to devise checks for the abuses most prev- 
alent in legislative assemblies. To prevent undue 
haste, it was provided that bills introduced after the 
twentieth day of any session should not be passed at 
that session, unless as emergency measures; and that 
none but an emergency measure should be passed until 
it had been printed and in the possession of each 
house, in its final form, for at least five days. Nor was 
any measure to be altered or amended on its passage 
through either house so as to change its original pur- 
pose. Issue-dodging and the shirking of legislative 
duties were to be discouraged by the deduction of ten 
dollars from the salary of a member for each failure 
to vote on a roll-call, unless such member were excused 
by a yea and nay vote of a majority of all the mem- 
bers of his house. 1 An attempt was made to combat 
the evils of secrecy by the requirement that the doors 
of each house and of all committees should be kept 
open, " except only in such cases as in the opinion of 
either house require secrecy, but in every such case 
the yeas and nays shall be entered on the journal. ,, 
Committees were required to be " liberal in allowing 
public hearings on measures; the chairman of every 
committee shall notify, in writing, all persons who ad- 



i Those who have found American patriotism personified in the 
Hon. William R. Hearst may be interested to compute how such a 
rule as this would have worked had it been applied to his recent ser- 
vice in Congress. It was reported that during the 71 days of the 
short session of the 59th Congress he was recorded as absent 69 days, 

248 



YEAR OF PEOPLE'S RULE IN OREGON 

vise the committee of their desire to be heard on any 
measure in its charge, of the time of such hearing-." 

These Oregon reformers apparently regard log- 
rolling as the most noxious of legislative distempers, 
and as a specific against it they devised the following 
oath, to be taken by every member: 

" I do further affirm and promise the voters of the 
state of Oregon, that during my term of office, in act- 
ing or voting as such officer upon any measure, I will 
always vote solely on my judgment that the bill or reso- 
lution will or will not advance the general welfare, ana 
without reference to the vote, action or caucus of mem- 
bers on that or any other measure, and without any 
understanding (except my public pledges to the people 
or instructions from the people) in any form with any 
member or person that I will aid or be friendly to a 
measure in which he is interested because he will or 
may be inclined to aid one in which I am interested. " 

As a crowning safeguard, it was provided that seats 
and desks should be provided on the floor of each 
house for the " people's inspectors of government," if 
such officers should be created by law. 

Early in the spring of 1910 it became evident that 
the election in November would be hotly contested. 
The cause of the uprising was dissatisfaction with the 
working of the " Oregon system " — in particular, with 
the fetter imposed by " statement No. 1 " upon can- 
didates for the legislature in pledging them to vote 
for the people's choice for United States senator. Such 
a requirement is of course obnoxious to the machine 
17 249 



THE INITIATIVE, REFERENDUM AND RECALL 

politicians ; but it must be confessed that the " Oregon 
system " has shown that it may yield anomalous re- 
sults, little calculated to give satisfaction to men of 
quite a different type — men who are firm believers in 
party and in party responsibility. Under normal con- 
ditions, Oregon is rated as a Republican state by a ma- 
jority of about 25,000. Yet at the present time the 
state is represented in the Senate by one man who is 
said to have shown some fickleness in his party alle- 
giance and by another who is a Democrat. It is no 
aspersion upon Senator Chamberlain's character or 
career to say — what is freely acknowledged — that his 
endorsement in the general election (which bound 
members of the legislature who had signed statement 
No. 1 ) was made possible only because the Republican 
party in the state was rent by faction. Some Repub- 
licans voted for Chamberlain because they preferred 
him to any leader of the opposing wing of their own 
party. Others frankly acknowledged that they voted 
for the Democrat in the popular election with the ex- 
pectation that he could be defeated in the legislature, 
thus bringing the direct primary and " statement No. 
1 " into such disrepute as to lead to their repeal. While 
the election was in progress in the legislature, one 
member after another announced that, bound by state- 
ment No. 1, he should vote for Chamberlain, but under 
grave protest that injustice was being done by a law 
which dictated the election of a candidate whose popu- 
lar endorsement reflected with so little clearness the 
real will of the people. The outcome was intolerable 

250 



YEAR OF PEOPLE'S RULE IN OREGON 

to many of the old-time leaders of the Republicans; 
and the most influential newspaper of the state came 
out with the declaration : " Republicans of Oregon in- 
tend to repudiate Statement No. i. They intend to 
suggest in assembly or convention candidates for the 
primary, and will put the knife into each and all who 
declare for Statement No. I." This movement made 
such progress that early in the summer " assemblies " 
convened in the several counties and in July a state 
" assembly " brought together some eight hundred 
delegates " to select and recommend " candidates for 
Congress and for the full list of state offices. But as 
a rose by any other name will smell as sweet, so the 
" assembly," as its opponents had confidently predicted, 
gave forth odors indistinguishable from those which 
had led the Oregon voters to banish the " convention." 
The Oregonian, which had stood sponsor for the as- 
sembly scheme, acknowledged that in the most impor- 
tant county in the state the county organization had 
been " too much in hands that did not have the gen- 
eral confidence or public respect " ; and it became 
known that on the eve of the meeting of the assembly 
there had been held a secret conclave, at the office of 
a local corporation, attended by the representatives of 
large financial and commercial interests, who had 
looked over the whole field and had placed their stamp 
of approval upon a full slate of candidates. With the 
work of the assembly thus discredited in advance, it 
is not strange that in the primary election in Septem- 
ber, despite the efforts of the Republican machine 

251 



THE INITIATIVE, REFERENDUM AND RECALL 

workers to put forward the assembly candidates as 
those alone entitled to the loyal support of the Repub- 
licans, many of these candidates met with defeat. The 
Oregonian ruefully attributed much of the disaster to 
" the more or less unsavory and notorious hangers-on 
of both state and county headquarters." 

There were other signs of an impending reaction. 
In the preceding session of the legislature there had 
been indications that the representatives of the people 
were not entirely acquiescent in the spirit of some re- 
cent " direct legislation." For example, the legislature 
referred to the people a bill providing that a conven- 
tion be forthwith elected for the purpose of revising 
the constitution. The People's Power League saw in 
this proposition a grave menace. They insisted that 
the initiative and referendum already provided ample 
machinery for making whatever changes might be de- 
sirable in the constitution; they professed fear that 
the motive underlying this bill was a purpose to " get 
rid of the initiative, referendum, recall, direct primary 
and Statement No. i " ; and they reminded the voters 
of Oregon of alarming precedents — cases in which con- 
ventions had refused to confine themselves to the tasks 
imposed upon them or had promulgated a new consti- 
tution without referring it to the people, even when 
their instructions clearly prescribed such reference. 

The preceding legislature also aroused much criti- 
cism by referring to the people a constitutional amend- 
ment providing that state senators and representatives 
should be elected by districts choosing only one raem- 

252 



YEAR OF PEOPLE'S RULE IN OREGON 

ber each. The very object of this proposal, it was 
alleged by its critics, was to make proportional repre- 
sentation impossible. Yet the voters of Oregon had 
committed themselves to the principle of proportional 
representation only two years before by a vote of 
more than three to two. 

With a vote on these menacing measures in pros- 
pect, and with the assembly candidates already in the 
field, Oregon politics early developed heat. Two 
months before the November election there appeared 
and was mailed to every registered voter in the state 
the official campaign book — the Oregon voter's political 
primer or cram-book for the coming examination in 
government. This year it was larger than ever, con- 
taining 208 pages. This book shows the voter, first, 
precisely how each measure will appear upon the ballot, 
thus: 

Proposed by Initiative Petition, 

" Women's taxpaying suffrage amendment, grant- 
ing to all taxpayers, regardless of sex, the right of suf- 
frage. 

" 300. Yes. 

"301. No." 
The " yes " and the " no " under each question are 
accompanied, as indicated above, by a certain assigned 
number by which it can be referred to ; and voters are 
exhorted from the stump and in the press to vote " yes, 
on 300," etc. Next, the campaign book presents the 
full text of every measure which is to come before 
the voters. And, finally, there are appended such argu- 

253 



THE INITIATIVE, REFERENDUM AND RECALL 

ments for or against any measures as interested per- 
sons may file with the state printer, such persons paying 
the bare cost of the additional printing and paper. Of 
the thirty-two measures presented in the 1910 book, 
only one was unaccompanied by something in the way 
of argument, while some called forth as many as three 
such contributions. Two-fifths of the volume — 85 of 
the 208 pages — were taken up by these attempts to 
persuade the voters. 

In regard to candidates, also, the state acts as a 
distributor of information. In the first place, the 
would-be candidate may file with the proper official a 
statement of his views, to the extent of one hundred 
words; and he may have printed against his name on 
the nominating ballot the quintessence of his creed, in 
not more than twelve words. Then, under a law of 
1909, pamphlets compiled by the secretary of state are 
issued, containing biographical sketches and portraits 
of candidates for party nomination, together with the 
arguments filed favoring and opposing certain of them, 
the expense of such political advertising being paid 
for by the candidate or by such of his representatives as 
sign their names to it. Some of this material for the 
last election was highly interesting, running all the way 
from a dignified setting forth of the candidate's con- 
victions and pledges, on the one hand, to slangy bom- 
bast and demagogy of the rankest nature, on the other. 

Public speeches and debates were frequent. As 
the election drew near, the press from day to day pub- 
lished editorials on the leading issues, together with 

254 



YEAR OF PEOPLE'S RULE IN OREGON 

lengthy letters from interested citizens, much as the 
numbers of the Federalist — to cite an august precedent 
— were published in the months while the ratification of 
the federal constitution was in question. Thousands 
of privately printed leaflets and pamphlets were dis- 
tributed, and more use than ever before was made of 
space in the newspapers; sometimes blanket pages, 
plainly marked " paid political advertisement," were 
devoted to a single question. To the majority of vot- 
ers in Oregon — as in every other state — politics is, of 
course, largely a game of " follow my leader " ; but it 
would have been difficult for any Oregon voter to have 
remained totally ignorant of the principal points in- 
volved in the more important measures on which he 
was to vote. Moreover, in such a state of ferment 
and heated discussion the leaders are forced to come 
out into the open and show where they stand. 

But in Oregon, with the dawn of election day, 
" the tumult and the shouting dies/' for election pro- 
ceedings are regulated by a most stringent Corrupt 
Practices Act — an act, it is well to recall, which was 
rejected by the legislature but was then forthwith put 
before the people by initiative petition and by them 
enacted. The " Oregon system " has thus supplied one 
of the most essential conditions for its own successful 
working. Election day in Oregon, since 1908, is a 
political Sabbath, holy unto the state. The time for 
argument and influence is past. The " thou shalt not " 
of the law applies, not only to money payments to af- 
fect votes, but to paying the expense of transportation 

35S 



THE INITIATIVE, REFERENDUM AND RECALL 

of voters to or from the polls and to buying, selling, 
giving or providing " any political badge, button or 
other insignia to be worn at or about the polls on the 
day of election, and no such political badge, button or 
other insignia shall be worn at or about the polls on 
any election day." Neither shall any person " at any 
place on the day of any election ask, solicit or in any 
manner try to induce or persuade any voter on such 
election day to vote for or refrain from voting for any 
candidate ... or any measure submitted to the 
people," under penalty of a fine of not less than five 
dollars nor more than one hundred dollars for the first 
offence. 

Assuredly the Oregon voter needed to be freed 
from all distractions, on the eighth of last November, 
if he were conscientiously to do his whole duty as a 
citizen. It may be doubted whether any voters were 
ever before confronted by so complicated a task as that 
presented by the Oregon ballot of that day. For ex- 
ample, the voter in precinct No. 9, Multnomah county 
— a Portland precinct — had to make his choice, be- 
tween candidates named upon the ballot to the num- 
ber of 131, for the filling of forty- five federal, state 
and county offices — and there were blanks where he 
might write in the names of yet others. And when 
he had recorded his choice among this host of candi- 
dates, his task was hardly begun; for in Oregon the 
voter is a law-maker, and it may be that more impor- 
tant legislation was to be enacted that day than in Sa- 
lem's " halls of legislation " during the next two years. 

255 



YEAR OF PEOPLE'S RULE IN OREGON 

Mr. Bryce tells us that the constitution of the United 
States with all its amendments may be read in twenty- 
three minutes. Merely to read aloud the titles of the 
measures upon that Oregon ballot would take the voter 
nine minutes. Cutting out all the explanatory head- 
ings, the mere titles require something like 1,900 
words — approximately three-sevenths of the number of 
words in the federal constitution. Obviously the voter 
must not postpone his weighing of arguments and the 
making-up of his mind as to issues until he gets the 
ballot in his hands, else the election would hardly yet 
be over. Upon that ballot were thirty-two distinct pro- 
jects of direct legislation — eleven of them involving 
amendment of the state constitution — placed there by 
three different processes. One, an act increasing the 
salary of a certain judgeship, was a referendum or- 
dered by petition of the people upon an act passed by 
the last legislature. Six of the measures were referred 
to the people by vote of the representative legislature. 
The other twenty-five measures were proposed by ini- 
tiative petition. These last-mentioned measures, of 
course, either had never been passed upon by the legis- 
lative assembly or — as in at least one instance — had 
met with defeat at its hands. 

What of the results of the election? In the first 
place, it is to be noted that the culmination of so long 
and so bitter a campaign brought out a very heavy 
vote. The record shows that the state contains about 
135,000 registered voters. The total number of bal- 
lots cast, as shown by the poll books, was 120,248. 

257 



THE INITIATIVE, REFERENDUM AND RECALL 

The contest for governor resulted in the election of 
Oswald West, the Democratic candidate, by a vote of 
54,853 — a plurality of 6,102 over Jay Bowerman, the 
Republican whose nomination had been forced by the 
" assembly." The Socialist candidate polled 8,059 
votes, and the Prohibitionists 6,027. The victory of 
the Democratic candidate is the more significant from 
the fact that no other Democratic nominee was elected ; 
indeed, in almost every other instance, the vote for the 
Republican candidate was double that for the Demo- 
crat. For the offices of state treasurer, attorney-gen- 
eral and state engineer the Democrats presented no 
candidates of their own; the Socialists, on the other 
hand, made nominations for all of these offices and 
polled votes ranging from thirteen to sixteen per cent, 
of the vote cast — an exceptionally high percentage 
for the Socialist vote in a state election, but doubtless 
cast here for candidates acceptable to many outside of 
the Socialist ranks. 

Of the thirty-two projects of legislation, the ballot- 
booth lawmakers enacted nine and rejected twenty- 
three. But that fact, of itself, is of little significance, 
except as indicating that direct legislation is to a de- 
gree conservative. In attempting to get at the real 
significance of this remarkable election, it is necessary 
to note how the voters dealt with the widely diverse 
types of projects submitted for their approval. One 
of the most eloquent apostles of the direct legislation 
movement, in a recent address, laid great emphasis 
upon the proposition that direct legislation is a safe and 

258 



YEAR OF PEOPLE'S RULE IN OREGON 

sane method of lawmaking because, " if the voters do 
not understand a proposition that is placed before them, 
they will simply vote against it." The writer sub- 
mits that psychological theory and the results in this 
election agree in showing that it is quite as likely that 
the voters who do not understand a proposition will 
not vote upon it at all ; and their mere abstention may 
result in verdicts that are far from safe or sane. 

In the present election, the total number of votes 
cast for the several measures varied from 73,321 to 
105,215 — from sixty to eighty-seven per cent, of the 
total* number of votes cast in the election. No one of 
the measures adopted received the approval of a ma- 
jority of that total. Leading by more than 10,000 all 
the other measures in their power to call forth votes 
were the three propositions which related to the liquor 
traffic. In recent years Oregon has had a local option 
law under which the sale of liquor has been prohibited 
in the majority of the counties. This encouraged the 
anti-saloon men to hope that they might capture the 
urban counties by the rural vote for state-w T ide pro- 
hibition and orators were imported, even from the 
Atlantic states, to wage the battle against the saloon. 
To oppose this project, the " Greater Oregon Home 
Rule Association " was formed and through its in- 
fluence a constitutional amendment " giving to cities 
and towns exclusive power to license, regulate and con- 
trol, suppress or prohibit the sale of intoxicating- liquors 
within the municipalities " was adopted by the close 
vote of 53,321 to 50,779. On the other hand, a pro- 

259 



THE INITIATIVE, REFERENDUM AND RECALL 

posed amendment prohibiting " the manufacture and 
sale of intoxicating liquors and the traffic in them 
within the state " was rejected, 43,540 to 61,221 ; and 
a drastic proposal to " prohibit, prevent and suppress 
the manufacture, sale, posession, exchange or giving 
away of intoxicating liquors . . . within the 
state " was rejected by a vote of 42,651 to 63,564. In 
contrast with these hotly contested liquor questions 
was a brief and vague tax measure, on which 32,000 
fewer men expressed an opinion than on the local op- 
tion amendment. 

In considering the rest of the measures, many may 
be dismissed with a word. Of the eight bills for creat- 
ing new counties, every one was rejected. The total 
votes on these questions ranged from J7,2>iJ to 85,252. 
In not one of the eight cases was the adverse majority 
less than 35,000, and in several instances the rejection 
was by a vote of nearly five to one. Apparently, al- 
though these measures were debated in the campaign 
book, the great majority of the voters considered them 
as purely local issues, with the presumption against 
their merit. The large number of such measures upon 
the ballot is accounted for by the fact that the present 
law of Oregon does not allow counties to be created 
or their lines to be changed by an ordinary act of the 
legislative assembly; every such law must be voted 
upon by the people. In view of the voters' marked 
disposition to defeat such propositions, it would seem 
that some highly desirable changes may prove almost 
impossible of attainment. At this same election, a bill 

260 



YEAR OF PEOPLE'S RULE IN OREGON 

which provided for the change of existing county lines 
and for the creating of new towns, counties and munic- 
ipal districts by a majority vote of the legal voters of 
the territory affected was rejected, 37,129 to 42,327. 
Each of three bills providing for the permanent 
support and maintenance of state normal schools called 
forth large votes, ranging from 87,099 to 90,235, but 
only one of them was passed. This result is of little 
significance as the issues were almost purely local. By 
far the heaviest adverse vote — a majority of 58,368 — 
was cast against a proposal for the payment to the 
judge of a certain court of $1,000 annually by Baker 
county, in addition to his salary from the state. It is 
said that this proposal was not without precedent and 
merit. The enormous vote against it is to be attrib- 
uted mainly to the proverbial disposition of the voters 
to keep salaries and other expenditures low — a ten- 
dency which may have had its influence in the defeat 
of the normal-school bills also. The state was here 
dragged into a local quarrel, inasmuch as this measure 
was an act of the legislature which had been held up 
by a referendum petition. Another issue little calcu- 
lated to be effectively handled by direct legislation was 
the bill, proposed by initiative petition, prohibiting the 
taking of fish from the Rogue River except by hook 
and line. The interests of the up-river and down- 
river people were here in conflict. The initiative pe- 
tition was originated by an association of up-river men, 
who charged that the salmon were being exterminated 
by commercial fishing, and that it was for the interest 

261 



THE INITIATIVE, REFERENDUM AND RECALL 

of the state to preserve angling on that river. On the 
other hand, the representatives of a canning concern, 
which had made very heavy expenditures upon a plant 
at the mouth of the river — a plant which the proposed 
law would have turned into junk — petitioned the pro- 
bate court (for the cannery was part of an unsettled 
estate) for permission to spend $10,000 to print and 
distribute to all voters in Oregon a circular setting 
forth facts as to the originating of the initiative peti- 
tion and showing its errors. This request being de- 
nied, they inserted in the campaign book an argument 
minimizing or denying the points made by their op- 
ponents ; an argument was also presented by the fisher- 
men of the county in which the cannery is located, set- 
ting forth their interests in that industry; while the 
Rogue River Fish Protective Association came to the 
defense of their petition with a third argument. So 
hopelessly contradictory were these opposing state- 
ments of fact and of interest that the Oregonian 
advised citizens to vote " no " as the safer course. 
Nevertheless, the proposed prohibition of commercial 
fishing was adopted, 49,712 to 33,397. Two of the 
three counties most interested voted against the pro- 
hibition by large majorities, but the third and most 
populous — an up-river county — voted more than five 
to one in its favor. Whichever' way the decision had 
turned, there would have been little presumption in fa- 
vor of its justice. The question was one which required 
the weighing of expert testimony as to the actual 
effects of commercial fishing as practiced in the Rogue 

262 



YEAR OF PEOPLE'S RULE IN OREGON 

River. It was impossible for the voters to form a well- 
grounded opinion from the interested arguments pre- 
sented in the campaign book, and it was absurd that 
such a question should be decided by the " yes " or 
" no " of thousands of voters who never were within 
hundreds of miles of the scene of operation. 

The matter of employees' indemnity for injuries 
sustained in the course of their employment came be- 
fore the voters in two forms. By a vote of 32,224 to 
51,719 they rejected a bill, proposed by initiative pe- 
tition, for a commission of nine men, named in the 
bill, to investigate the subject and submit a draft of a 
bill to the legislative assembly. In the campaign book 
this measure was opposed by the Oregon State Federa- 
tion of Labor on the ground that such an investigation 
was unnecessary inasmuch as the question had already 
been thoroughly investigated in other states, especially 
in New York. The federation further alleged that this 
project was a mere blind, instigated by the Employers' 
Association through whose influence an indemnity act 
had been blocked in the last session of the legislature. 
This labor organization was itself sponsor for a meas- 
ure requiring protection for persons engaged in haz- 
ardous employments, defining and extending the lia- 
bility of employers and providing that contributory 
negligence should not be a defence, although it might 
be taken into account by the jury in fixing the amount 
of the award. This was approved, 56,258 to 33,943. 
This measure is in line with the position often taken 
by Mr. Roosevelt and by such students of the labor 

263 



THE INITIATIVE, REFERENDUM AND RECALL 

movement as the late Carroll D. Wright, who have in- 
sisted that under modern industrial conditions the " fel- 
low-servant rule " is an anachronism which often must 
work grave injustice. But this is a complicated law, 
making very drastic demands of employers, subjecting 
them to fine or imprisonment or both in criminal pro- 
ceedings for violation of the law, and giving depend- 
ents of an employee killed in the course of his employ- 
ment " a right of action without any limit as to amount 
of damages which may be awarded." Whether it is 
for the best interests of Oregon industries and of the 
employees themselves that these specific and heavy bur- 
dens be devolved upon the employers remains to be 
seen. It took the voters, however, not more than one 
second apiece to declare by a majority of 23,000 that 
this shall be the law. 

By substantial majorities, two measures of general 
interest were passed, the one providing for the loca- 
tion, construction and government of a branch insane 
asylum (50,134 to 41,504), the other authorizing 
counties to exceed the $5,000 debt limit for the purpose 
of building permanent roads within the county, pro- 
vided such debts are incurred on the approval of a ma- 
jority of those voting on the question (51,275 to 
32,906). 

One of the most radical measures submitted 
authorized the state or any county, municipality or 
railroad district to purchase or construct railroads or 
other highways within the state, and to lease or oper- 
ate the same. It has been suggested that the real ob- 

264 



YEAR OF PEOPLE'S RULE IN OREGON 

ject of this measure, which was referred to the people 
by the legislature, was to secure better service from the 
railroads by threat of state action. It <was rejected, 
32,844 to 46,070. 

The pocket-nerve of the American voter is pro- 
verbially sensitive. Upon the ballot were three meas- 
ures relating to taxation. All of them were important, 
yet not one of them polled a large vote ; in fact, of the 
two which were rejected, one stood at the very bottom 
of the list of thirty-two and the other held thirtieth 
place in the voters' interest. The first of these three 
was a constitutional amendment, referred to the peo- 
ple by the legislature, " directing a uniform rate of 
taxation except on property specifically taxed, author- 
izing the levy and collection of taxes for state purposes 
and for county and municipal purposes upon different 
classes of property, and appropriating state taxes as 
county obligations." This was rejected, 31,629 to 
41,692. The second was a proposed constitutional 
amendment, also referred to the people by the legisla- 
ture, to omit from the constitution the words " and 
all taxation shall be equal and uniform " and to insert 
in lieu thereof the words "taxes shall be levied and 
collected for public purposes only, and the power to 
tax shall never be surrendered, suspended or contracted 
away." This amendment also was rejected, 37,619 to 
40,172. Students of Oregon taxation methods have 
asserted that these two measures would open the way 
for much-needed reforms. Both measures had been 
passed by the legislature in response to pressure from 
18 265 



THE INITIATIVE, REFERENDUM AND RECALL 

the granges, and both were supported in the campaign 
book by an argument submitted by the Oregon State 
Federation of Labor and the Central Labor Council 
of Portland and Vicinity. But this argument shed lit- 
tle light upon the precise effects to be expected from 
the adoption of the proposed changes. If clear-headed 
tax reformers believed that these measures were of 
merit, they should have secured for them more effect- 
ive exposition and advocacy. The third tax measure 
called out a larger vote and was adopted by a small 
majority, 44,171 to 42,127; yet its merit is probably 
more dubious than that of either of the others. This 
constitutional amendment was proposed by initiative 
petition. It provides that the people of each county 
may " regulate taxation and exemptions within the 
county, regardless of constitutional restrictions or 
state statutes, and abolishing poll or head tax." This 
amendment was advocated in a brief argument, which 
covered the two preceding measures as well, by the 
above-mentioned labor organizations. Principal stress 
was laid upon its abolishing the unpopular poll tax, 
and it is freely asserted that the mere inclusion in the 
title of those words made a sufficient appeal to preju- 
dice against that minor feature of the tax system to 
secure the small majority by which the amendment 
was adopted. The other point ■ most emphasized by 
its advocates was the opportunity which this law would 
afford to each county to try experiments on a small 
scale with different systems, from which experience 
other counties might profit. It was further urged that 

266 



YEAR OF PEOPLE'S RULE IN OREGON 

local regulation of taxation would thus secure to the 
people " the direct power to manage their own pocket- 
books." Nowhere in the measure itself nor in the 
argument printed in the campaign book does the ulte- 
rior object of the measure receive mention. That ob- 
ject, however, was well known and generally recog- 
nized; it was to make possible the adoption of the 
" single tax," piecemeal, by the several counties. In 
1908 the single-taxers put before the people a modifica- 
tion of the Henry George programme; the measure 
was frankly and ably argued in the campaign book, 
and it* was rejected by a vote of nearly two to one 
(32,066 to 60,871). This year the advocates of the 
" land-value tax system " pursued a shrewder but less 
ingenuous policy ; they allowed the labor organizations 
to pull out of the fire some no-poll-tax chestnuts, which 
are found to have a strong single-tax flavor. In the 
press and on the stump the real object of this measure 
was brought out, and it was advocated in a remarkably 
effective campaign pamphlet, of which Mr. W. S. 
U'Ren was one of the joint authors. It is singular 
that none of the conservatives, who since the election 
have been deploring the adoption of this constitutional 
amendment, had interest enough to present their argu- 
ments in the campaign book, where they would have 
reached every voter. Opinions differ as to the out- 
come. At the previous election in Multnomah county, 
1908, the single-tax proposition was defeated by only 
483 votes in a total of 22,139. This would suggest 
that by the conversion of some three or four hundred 

267 



THE INITIATIVE, REFERENDUM AND RECALL 

voters to the single-tax creed, the most populous county 
of the state may be made the first important laboratory 
for testing the Henry George theories. Naturally the 
single-taxers are jubilant 1 ; but in the rest of the com- 
munity — even among those not indisposed to shift 
upon land values a far heavier proportion of the tax 
burden — there is a grave feeling of apprehension. It 
is felt that no one county can safely stand aloof and 
by itself in financial relations in which the interests of 
the entire commonwealth are so closely interlinked. 

The measure which called out by far the largest 
vote, with the exception of the liquor measures, was 
the " women's taxpaying suffrage amendment, grant- 
ing to taxpayers, regardless of sex, the right of suf- 
frage." So read the official title placed upon the bal- 
lot by the attorney-general. This is the fourth time 
within ten years that this issue has been forced to a 
vote, three times by initiative petition. At previous 
elections the majority against women's suffrage has 
been as follows: in 1900, 2,137; in 1906, 10,173; in 
1908, 21,649. This year the suffragists took a new 
tack, emphasizing strongly the grievances of the many 
taxpaying women of the state, and closing their ap- 
peal thus : " Oregon has now the opportunity to lead 
the world in a safe and conservative extension of the 
elective franchise to every woman who is taxed to sup- 
port the government, and we earnestly hope we shall 

* Mr. Joseph Fels, the leading single-tax propagandist has al- 
ready gone to Oregon, and the single-tax programme is openly ar£. 
nounced as the chief issue for 19 12. 

268 



YEAR OF PEOPLE'S RULE IN OREGON 

not be compelled to repeat this appeal in 1912." But 
the voter who read not merely the ballot title and the 
appeal but also the law itself found that there was a 
glaring discrepancy between them; for the proposed 
amendment made a positive and sweeping grant of the 
suffrage to " every citizen of the United States of the 
age of twenty-one years and upwards, who shall have 
resided in the state during the six months immediately 
preceding such election," and so forth. Only after this 
positive grant had been fully set forth was there 
added : " It is expressly provided hereby that no citi- 
zen who is a taxpayer shall be denied the right to vote 
on account of sex." As the opponents of the measure 
said, in their campaign book argument : " The last 
clause in the proposed amendment about taxpaying 
women is pure buncombe. It adds nothing to and de- 
tracts nothing from the preceding provisions." The 
placing of the above title upon such a measure 
suggests some interesting questions. What is to 
be said of the legal acumen of an attorney-general 
who could either formulate or accept such a mis- 
leading title? As for the women who presented 
this as " a safe and conservative extension of the 
elective franchise to every woman who is taxed," if 
they were not clear-headed enough to see that the law 
would at the same time extend the suffrage to every 
woman who is not taxed, provided she were a citizen 
of the required age and residence, their addition to the 
electorate would not tend greatly to raise its intellec- 
tual plane; if, one the other hand, as a last resort they 

26g 



THE INITIATIVE, REFERENDUM AND RECALL 

were willing to win the suffrage by a shabby trick, 
they would bring to the polls little of that elevation of 
political morality which they have often claimed would 
be their chief contribution to political life. The voters' 
verdict, for the fourth time, was against woman's 
suffrage, 35,270 to 59,06s. 1 

There remain to be considered the measures which 
most closely concerned the future of " people's rule " 
in Oregon and of the " Oregon system." By the legis- 
lature there were referred to the people two measures 
which were backed by much the same influences which 
instituted the " assembly " and forced Bowerman's 
candidacy as the Republican nominee. The first was 

1 The Oregon suffragists' initiative petition for 19 12 has already- 
been filed (January, 191 1). 

It is singular that on the same day (November 8) in the adjoining 
state of Washington the voters should have adopted a woman's 
suffrage amendment by a considerable majority. On the eve of the 
election Alfred Brown, who had been on the stump in Washington 
for woman's suffrage, predicted its victory at the polls, adding: 
"The ambiguous wording of the amendment will poll many votes for 
suffrage since the words 'woman's suffrage' are not mentioned. 
We . . . often vote 'yes ' when we don't know what we are voting 
for." — Boston Herald, November 5, 1910. 

The suffrage was extended to women in Washington Territory 
by a law of 1883, entitled "An Act to amend sec. 3050 ch. 238 of 
the Code of Washington Territory." Under this women voted in 
Washington till 1887 when this law was held to be unconstitutional 
because its object was not expressed in its title as required by the 
Organic Act. "Females then are not voters in this territory." 
Harland v. Territory of Washington, 3 Washington Territorial Re- 
ports, 131. It is a singular coincidence if woman's suffrage has now 
been restored in Washington by means of a ballot title purposely 
evasive "relating to the qualifications of voters." 

270 



YEAR OF PEOPLE'S RULE IN OREGON 

a measure providing for a convention for the purpose 
of making a general revision of the constitution. This 
was antagonized by the People's Power League, not 
only because it was needless and would occasion un- 
necessary expense and disturbance of business, but 
also on the ground that it was a scheme for getting 
a constitution adopted and " proclaimed " which would 
do away with the initiative, the referendum, the recall, 
the direct primary and "statement No. i." It was 
defeated, 23,143 to 59,974. The second measure pro- 
posed an amendment of the constitution providing a 
separate district for the election of each senator and 
representative. This was an obvious attempt to pre- 
vent the carrying out of the principle of proportional 
representation, adopted by the Oregon voters by a 
large majority, only two years earlier; and it was 
rejected by a vote of 24,000 to 54,252. 

The People's Power League succeeded better in 
defending the ground already won than in capturing 
the new fields toward which they had directed their 
campaign. Of the four measures which they formu- 
lated by the elaborate process described above, and to 
which they gave earnest support in the campaign book, 
in the press, in pamphlets and on the stump, the two 
more radical measures were rejected. Of these, the 
one which suffered the worst defeat was the proposed 
law creating the board of " people's inspectors of gov- 
ernment," who were also to be charged with the duty 
of publishing the Oregon Official Gazette. This meas- 
ure was loosely drawn; it sought to create an office 

271 



THE INITIATIVE, REFERENDUM AND RECALL 

which was an absolute innovation; and some of its 
features were calculated to arouse distrust. The news- 
papers ridiculed and opposed the institution of any 
such board of recording angels for functions which 
the press assumes to perform, and the measure was 
rejected, 29,995 to 52,538. Defeat, though by a closer 
vote, 37,031 to 44,366, was also the fate of one of the 
most carefully thought out and comprehensive meas- 
ures upon the ballot, namely, the proposed constitu- 
tional amendment which essayed to redistribute the 
legislative power in a commonwealth where the initia- 
tive and referendum have received unprecedented ex- 
tension. There was no measure upon the ballot of 
equal political interest, and none of which the opera- 
tion would have commanded, in anything approaching 
the same degree, the attention of the country. It 
would have introduced a variety of untried correctives 
for legislative abuses which are widespread — the ger- 
rymander, tyrannical rules, absenteeism and log-roll- 
ing. 

By a still closer vote, 43,353 to 41,624, the pro- 
visions of the direct primary law were extended to 
presidential nominations. On the nineteenth of April, 
19 1 2, accordingly, each voter of Oregon will have a 
formal opportunity to designate his personal choice 
of candidates for president and vice-president of the 
United States; later he may take part in nominating 
directly candidates for presidential electors, and in 
electing, under a system of proportional representation, 
delegates to the national conventions. Men of char- 

272 



YEAR OF PEOPLE'S RULE IN OREGON 

acter and not merely of cash may stand a better chance 
of being elected delegates, since the state is to pay the 
expenses of each, up to $200. Space to the extent of 
four pages will be available in the state campaign 
book for setting forth the reasons why each of the sev- 
eral candidates for any office to be voted for by the 
voters of the state at large should be elected. The sena- 
torial and congressional candidates must pay at the 
rate of $100 a page, but " no charges shall be made 
against the candidates for president and vice-president 
of the United States for this printed space." Four 
pages of free political advertising are therefore to be 
available for each regularly nominated presidential 
candidate in 191 2. It may be of interest to several 
recently elected governors of eastern states to know 
at once that the Oregon campaign book runs about six 
hundred words to the page. 

By a substantial majority, 44,538 to 39,399, the 
voters adopted the amendment aiming at reforms in 
the administration of the law. The most significant 
changes are the abolition of the grant of new trials 
on mere technicalities and the substitution of a three- 
fourths majority for unanimity in the rendering of a 
verdict by a jury in civil trials. 

As the smoke of the contest clears away, it is 
evident that " people's rule " has strengthened its posi- 
tion. In a state normally Republican by 25,000, the 
election of a Democrat by a plurality of 6,000 over the 
Republican forced upon his party by the " assembly " 
can have no other meaning than that the rank and file 

273 



THE INITIATIVE, REFERENDUM AND RECALL 

of the voters resent the attempt to emasculate the 
direct primary and the " Oregon system.'' The rejec- 
tion of the proposed constitutional convention indi- 
cates that the voters are confident that needed changes 
can be made by the initiative and referendum, and that 
they do not propose to run any risk of losing those 
powerful agencies of public opinion. They rejected 
the single-district measure, because they had already 
committed themselves to the principle of proportional 
representation, although they were not yet ready to 
accept the application of it submitted to them at this 
election. In approving the reform of the judicial sys- 
tem and the extension of the direct primary law, they 
were following the same leadership which in the past 
ten years has made Oregon the most interesting po- 
litical experiment station in the country and has con- 
ferred upon her people a greater degree of direct self- 
government than is to be found in any other American 
commonwealth. 

But does this " new birth of democracy " promise 
permanence of the good and progress toward the bet- 
ter? It must be confessed that the election just past 
has given its notes of warning. In the first place, the 
ballot was a preposterous thing. " It's like voting a 
bed-quilt " was the comment of one of the policemen 
at the polls. Experience will certainly prove that the 
" short ballot " movement and the " people's rule " 
movement must go together. The voter's task must be 
made reasonable. Not even the allowing of two 
months for the conning of a campaign book can make 

274 



YEAR OF PEOPLE'S RULE IN OREGON 

it reasonable to expect that the voters, at a single elec- 
tion, will choose with discrimination forty-five officers 
from a list of 131 candidates and then vote with intel- 
ligence upon thirty-two measures of every variety and 
grade of importance. It is generally conceded that a 
considerable proportion of the measures were absurdly 
unsuited to be voted upon by the people of the entire 
state. This was certainly the case with the eight 
county bills ; the three normal-school bills probably be- 
long in the same class ; and at least two other measures 
were df little general interest. The men who have had 
most influence in introducing " people's " rule in Ore- 
gon are not blind to this defect. In the first draft of 
the measure for reconstituting the legislative power 
there was a provision that the number of direct legis- 
lation measures to be voted on at any one election 
should be limited to twelve, and this clause was 
strongly supported by argument from theory and from 
Oregon experience. It was found, however, that this 
proposed limitation upon the voter's power was un- 
popular, and it was accordingly thought best to cut it 
out lest it should imperil the entire measure. The 
Oregon voter has found that he can make laws, and 
he is little impressed by the argument that he would 
do this work better if he attempted less of it at one 
time. 

The experience of this election, furthermore, has 
proved the need of attention both to the psychology 
and to the ethics of title-writing. One measure, said 
to have been of genuine merit, is believed to have been 

27s 



'THE INITIATIVE, REFERENDUM AND RECALL 

defeated because its title included a doubt-raising 
clause which had been successfully avoided in the text 
of the law itself. Another measure of dubious merit 
was passed, probably because the title, while silent as 
to the main intent of the law, made a successful ap- 
peal to an exaggerated popular prejudice against a poll 
tax. Direct legislation is not the spontaneous register- 
ing of the individual voter's matured judgment as to 
the best method of dealing with a given problem; the 
voters simply say " yes " or " no " (or say nothing) 
to specific proposals originated, framed and phrased — 
and every step in the procedure is of consequence — 
for them by some one else. By whom? For what? 
These may at times prove disquieting questions. For 
example, not one of the three tax measures upon the 
November ballot was drawn in such language as to 
make its intent clear and unmistakable; nor was this 
lack supplied by any enlightening argument in the 
campaign book, the one argument there submitted, in 
joint advocacy of the three, being in tone and in logic 
little calculated to serve as the basis for forming a can- 
did judgment. Direct legislation will presently be giv- 
ing to Oregon a poor travesty of " people's rule," un- 
less to the framing of laws and to the phrasing of their 
titles there is brought a keener intelligence and a more 
sensitive conscience than were responsible for the law 
intended to secure the piecemeal introduction of the 
single tax and for the " women's taxpaying suffrage 
amendment." As one of the writer's correspondents 
puts it : " It is quite clear that popular legislation can 

2j6 



YEAR OF PEOPLE'S RULE IN OREGON 

be worked only by ' simplifying ' issues ; and the fur- 
ther this goes, the more important becomes the real 
initiative of the irresponsible persons, whether pa- 
triots or schemers, who formulate the ' simplified ' 
issues." 

On the whole, considering the immense complexity 
of the task which was set before them, it must be 
acknowledged that the Oregon voters stood the test 
remarkably well. They detected and repelled covert 
attacks upon their own power; they rejected measures 
so radical as to arouse doubts; they gave their ap- 
proval of laws which, in the main, are consistent and 
develop the system already adopted. 

Critics will differ as to the merit of the several 
measures, and they may deride " voting by the square 
yard." But this much the most conservative of them 
must concede : in Oregon the state is not shriveling 
up, nor have national issues there entirely submerged 
state issues — two valid criticisms which Mr. Bryce 
passed upon American state politics in general. In the 
past twelve months Oregon voters have had affairs of 
their own to think about, which have been quite as 
engrossing as the tariff or the new nationalism. There 
has been a vitality, a genuineness in Oregon politics 
sharply in contrast with the state campaigns in many 
of the eastern states. In Oregon no man has been able 
to read his title clear to office in the state or at Wash- 
ington by merely subscribing to the creed of some 
leader in one of the national parties; he has had to 
face the question : " What do you stand for, on thes^ 

277 



THE INITIATIVE, REFERENDUM AND RECALL 

definite issues regarding the carrying on of govern- 
ment in Oregon?" With keen interest the voters 
have been grappling with the problems — political, in- 
dustrial, educational, financial — of self-government 
within their own state. A genuine campaign of edu- 
cation has been in progress, which cannot fail to pro- 
duce important and enlightening results, quite above 
and beyond the verdict rendered November 8 upon the 
various points which were at issue during the preced- 
ing months of debate. 



CHAPTER XI 

THE UNFAVORABLE RESULTS OF DIRECT LEGISLATION 
IN OREGON 

The other side of the question concerning the 
value of direct legislation has been presented by Fred- 
erick V. Holman, Esq., the President of the Oregon 
Bar Association. The Chicago Civic Federation, 
which is also opposing the initiative and referendum, 
has given widespread publicity to Mr. Holman's views 
in one of its bulletins, which is here reproduced: 

I am here to tell you of some of the results under 
the initiative and referendum amendment of the 
Oregon constitution. I am a native of Oregon. 
It has always been my home, and, therefore, I 
can claim some familiarity with the economic condi- 
tions which prevail in my native state. While Oregon 
has an area of over 90,000 square miles and is one- 
third larger than the state of Washington, it has 
grown slowly. By reason of the lack of railroads the 
eastern part of Oregon — approximately 55,000 square 
miles — is sparsely settled. Its population is 672,765, 
a little less than one-third of the population of the city 
of Chicago. The total vote for governor in Novem- 

279 



THE INITIATIVE, REFERENDUM AND RECALL 

ber, 1910, was 117,690, a little more than one-third of 
the vote of Chicago last November. Portland is the 
only city of any considerable size in Oregon. Its pop- 
ulation is a little over 207,000. Two-thirds of Ore- 
gon's population, therefore, is in small towns and in 
the country at large. We must consider, too, that Ore- 
gon was settled by hardy and intelligent pioneers 
whose influence is still largely felt. 

If you in Illinois wish to learn of the initiative and 
referendum by our experience, it is now a good time 
to begin. If the plan is unsatisfactory in Oregon, with 
its agricultural and village population, largely of 
Anglo-Saxon ancestry, keenly interested in public af- 
fairs and with environments conducive to deliberation, 
what will be the result in the cosmopolitan city of Chi- 
cago, with a steadily increasing proportion of its vast 
population accepting for the first time large responsi- 
bilities in citizenship, and with its hurry and turmoil of 
economic life anything but favorable to the study and 
deliberation presupposed by the initiative and referen- 
dum? Obviously the Oregon plan might succeed in 
Oregon and be a failure in Illinois. But, if the plan 
has failed in Oregon in times of quiet and prosper- 
ity, what may be your experience of legislation by 
popular vote in times of unrest, turmoil or mob vio- 
lence? Has it failed in Oregon? Let us scrutinize 
the facts. 

When the initiative and referendum amendment to 
the constitution of Oregon was proposed, its advocates 
stated (as I understand it has been alluringly stated in 

280 



UNFAVORABLE RESULTS IN OREGON 

Illinois) that it was to be merely a club in the hands 
of the people for securing good, and checking bad, 
legislation ; that it would be invoked rarely and would 
be a " reserve " power and not an active nor a disturb- 
ing power. There was no scandalous conduct of our 
state affairs to demand this amendment. No public or 
quasi-public corporations sought to control the politics 
of the state or to meddle with public affairs as was the 
case in California and some other states. Our legis- 
lature was no worse than other state legislatures; 
probably better than some. But on the plea of agita- 
tors that its character would be improved, and after 
endorsement by all political parties, this . amendment 
was adopted in 1902 by a vote of 62,024 to 5,668, with 
no debate and little serious consideration on the part 
of most voters, and with about twenty- four per cent, 
of all the voters at that election failing to vote on the 
measure at all. This amendment provided for the 
initiation of legislation (the placing of a law or con- 
stitutional amendment on the ballot to be voted up or 
down) by petition of " not more than eight per cent, 
of the voters," and for the submission of legislative 
enactments to popular vote by petition of five per cent, 
of the voters. These same percentages I understand 
are now proposed for Illinois. 

We now come to the consideration of three basic 
questions : 

1. To what extent did this amendment operate as 
a " reserve " power, and to what extent was it thus 
effective ? 

19 281 



THE INITIATIVE, REFERENDUM AND RECALL 

2. What character of legislation was proposed 
under this " reserve " power? 

3. Did the people use this " reserve " power in- 
telligently ? 

In reply to the contention that this " reserve " 
power would improve the character of the legislature, 
I will state, without fear of contradiction, that there 
has been no substantial change in the kind of legisla- 
tors since the adoption of this amendment. As to the 
operation of this amendment as a " reserve " power, 
I shall merely call attention to the constant increase 
in size of our direct legislation ballots. In 1904 two 
measures were submitted; in 1906, eleven; in 1908, 
nineteen (ten constitutional amendments and nine pro- 
posed laws) ; in 19 10, thirty-two (eleven constitutional 
amendments and twenty-one proposed laws, and the 
initiative was responsible for twenty-four of these 
propositions). 

How many propositions shall we have placed upon 
our ballot for the confusion of our voters at our next 
state election ? Signatures are easy to get. In Oregon 
any person may have any crank measure, proposed law 
or constitutional amendment alike, placed upon the bal- 
lot. All that is necessary is a petition and the signa- 
tures of not less than 10,000 voters, and professional 
signature-getters will get the signatures. — for a con- 
sideration. 

The general characteristics, particularly of initia- 
tive measures, have been careless and loose phrase- 
ology, and ambiguities leading to difficulties for the 

282 



UNFAVORABLE RESULTS IN OREGON 

supreme court. The very vagueness of the phrase 
" not more than eight per cent, of the legal voters," 
in the initiative amendment itself is typical of the 
crudity of resulting measures. The petition which 
" shall include the full text of the measure proposed," 
once filed, cannot be amended. One measure was 
adopted which was declared void because it had no 
enacting clause. The omission was discovered after 
the petition was filed, and the measure could neither be 
amended nor withdrawn from the ballot. Another 
fundamental objection to the Oregon plan is that it is 
rapidly depriving us of that stability in government 
which the constitution is designed to supply. A con- 
stitution is a bill of rights setting forth the basic prin- 
ciples under which the people commit themselves to re- 
striction of individual privileges for the benefit of the 
mass. The Oregon constitution is now being changed 
as readily and almost as frequently as the statutes and 
by minorities of the voters. It is optional with the au- 
thor of any initiative measure whether it shall be pre- 
sented as a proposed amendment or as a proposed law. 
The only real distinction lies in the fact that the legisla- 
ture may repeal an objectionable law, but that a bad 
constitutional amendment can be repealed only at the 
next election by a majority of those voting on the ques- 
tion, and therefore remains operative much longer 
than the law. 

Having thus observed the operation of the initia- 
tive and referendum as a " reserve " power, let us see 
whether or not the voters use this power intelligently. 

283 



THE INITIATIVE, REFERENDUM AND RECALL 

Senator Bourne of Oregon, speaking in the United 
States Senate, May 5, 19 10, said that the people of 
Oregon had acted intelligently on the initiative and 
referendum up to and including the year 1908, the 
election of 19 10 being subsequent to the delivery of his 
speech. We naturally ask what is " acting intelli- 
gently " ? When is such action possible ? 

I have not calculated the percentage of electors 
voting on all the various measures, but I am informed 
by an ardent advocate of the Oregon plan that the 
greatest percentage of voters who have acted on any 
of these measures in Oregon is ninety per cent, and 
the smallest, sixty-two per cent. This is based on the 
number of electors voting at an election, not on the 
registered vote. On this basis ten per cent, do not vote 
at all and as many as thirty-eight per cent, do not vote 
on some measures. Under the Oregon plan it is a 
majority of those voting on a proposition, not a ma- 
jority of all the voters, which determines its fate. 
Certainly those who do not vote on a measure do not 
act intelligently on it. There are many who vote 
" yes " on all measures, as some vote their straight 
party ticket without regard to fitness of the candidates, 
and this cannot be called intelligent voting. Then 
there are many men of business affairs and intelli- 
gence who have not the time to consider most of these 
measures and who, unless their attention is especially 
attracted, vote " no " without regard to the merits or 
demerits of amendments and laws. In my opinion, 
such men do not act intelligently. It is impossible to 

284 



UNFAVORABLE RESULTS IN OREGON 

ascertain the number of voters who act thus unintelli- 
gently, excepting, of course, those who do not vote at 
all. It is significant, however, that the average per- 
centage of those voting for state officers who also have 
voted on initiative and referendum measures has de- 
creased progressively from 78.5 per cent, in 1904 to 
72.2 per cent, in 1910. 

Comparatively few of the direct vote measures in 
1910 received more than 80 per cent, of the total vote 
for governor. The total vote on the woman's suffrage 
amendment (overwhelmingly defeated) was 563 votes 
more than 80 per cent. Most of the measures acted 
upon may be grouped as follows with reference to the 
percentage they received of the vote for governor : 
three measures, between 75 and 80 per cent. ; twelve, 
between 70 and 75; twelve, between 65 and 70; one, 
a fraction less than 62.04 per cent. The principal in- 
terest in these initiative measures in 19 10 touched 
three questions affecting the sale of liquor. These 
received total votes of 101,375 (86.13 per cent), 104,- 
712 (89.81 per cent.) and 106,213 (90.24 per cent.). 
Thus it will be seen that (with the exception of the 
three liquor measures and that for woman's suffrage) 
40 per cent, of the total vote might have carried twelve 
measures; 35 per cent, twelve, and less than 32 per 
cent. one. Moreover, not one of the nine measures 
which will carry, including the home-rule amendment, 
received a majority of the total vote. It is a political 
axiom that the majority should rule, but without 
prejudice to the rights of the minority. In Oregon 

28s 



THE INITIATIVE, REFERENDUM AND RECALL 

tinder the initiative the minority rules in many in- 
stances and sometimes to the prejudice of the major- 
ity, as I shall subsequently show. 

I cannot go into all the measures voted upon since 
1902, but I shall cite a few voted on in 1908 and 19 10 
to show you that if the initiative and referendum are 
good per se (and I am convinced they are not), then 
the Oregon form is not a good one. 

In the Columbia River below the mouth of the 
Sandy River salmon are taken mostly by gill nets, traps 
and seines. Above the Sandy River they are taken 
mostly by fish-wheels in rapid water. Strong antago- 
nism between the lower and upper river fishermen has 
resulted. In 1908 each of these interests under the 
initiative proposed a bill, one designed to prohibit 
commercial fishing below the Sandy River, and the 
other calculated to prohibit commercial fishing above it. 
Each of these bills received a favorable majority at the 
election ; became law, and all commercial fishing on the 
Columbia was prohibited. It is true that when two 
antagonistic bills each receive a majority, the one hav- 
ing the largest affirmative vote is to be regarded as 
the law ; but these two bills were not antagonistic, each 
applying to different parts of the Columbia River. For- 
tunately the legislature met before the next fishing 
season and the matter was adjusted. However, had 
those bills been amendments to the constitution there 
could have been no relief until the next regular elec- 
tion two years after, and one of the great industries of 
our state would have been paralyzed. Did the vote 

286 



UNFAVORABLE RESULTS IN OREGON 

on these fishing bills show intelligent action? Doubt- 
less there was need for some wise conservation all 
along the stream, but these bills provided nothing of 
the kind, and the voters cannot be blamed for failure 
to act intelligently, because no opportunity for intelli- 
gent action was afforded. That, however, is scarcely 
an argument for the initiative. 

The University of Oregon, of which I have been 
a regent for several years, has a small endowment 
which brings in a revenue of about $25,000 a year. 
Prior -to 1907 it received appropriations at each bien- 
nial session of the legislature. In the session of Janu- 
ary, 1905, the legislature appropriated for the univer- 
sity $62,500 a year for two years. A referendum peti- 
tion was filed within ninety days after the legislature 
adjourned, and the vote on this referendum could not 
be had until June, 1906, the next regular election, 
nearly a year and a half after the appropriation was 
made. During that time the moneys of the university 
became exhausted and it would have been compelled 
to close its doors had not the professors agreed to con- 
tinue their duties and to receive no pay if the referen- 
dum was successful. Fortunately there was a small 
majority in favor of the appropriation. 

Two years later, in the session of January, 1907, 
the legislature gave the state university a continuing 
appropriation of $125,000 a year. Again a referen- 
dum petition was filed against this appropriation, with 
a similar result. The moneys again were exhausted and 
the professors again agreed to receive no pay if the 

287 



THE INITIATIVE, REFERENDUM AND RECALL 

referendum was successful. The vote was taken in 
June, 1908, nearly a year and a half after the bill 
passed the legislature. Out of a total vote of 105,298 
at that election there was a total vote on the referen- 
dum of 84,650, divided thus: 

For the appropriation 4 44,1 15 

Against the appropriation 40,535 

Majority of votes cast on proposition 3,580 

Percentage of voters not concerned with fate of the state 

university 19.6 

The vote cast against the appropriations for Ore- 
gon's state university may have been intelligent but 
it is not educational, except as an argument against 
the indiscriminate use of the referendum. 

In 1908 a single-tax amendment to the constitution 
was presented to the voters. It declared in the title 
for wholesale exemptions, and the opening statement 
in the affirmative argument filed with the secretary of 
state read, " the proposed amendment is a step in 
the direction of the single tax." This amendment was 
decisively rejected by the following vote: 

For the amendment 32,066 

Against the amendment 60,871 

Majority against adoption 28,805 

Percentage of total vote cast recorded against amendment. 57.7 

The single-tax advocates were persistent and in 
1 910 submitted three single-tax amendments by initia- 
tive petition. Two were barely defeated, the vote on 
them being so light that less than thirty-six per cent. 
of the vote for governor would have carried them. 
The third amendment was carried. It was worded 

288 



UNFAVORABLE RESULTS IN OREGON 

more attractively than the one rejected in 1908, the 
opening sentence stating that " no poll or head tax 
shall be levied or collected in Oregon," and not one 
word was said about the single tax in the affirmative 
argument which emphasized the injustice of the poll 
tax, and held out the promise that : " the approval of 
these amendments will give to the plain people and the 
taxpayers of Oregon more bread and butter profits 
from the government than they have ever had in the 
past." What did this mean ? Was it an appeal to in- 
telligence ? 

The vote on this amendment stood : 

For the amendment 44.171 

Against 42,127 

Preponderance of votes for 2,044 

Total vote cast for governor 1 17,690 

Thus 37.53 per cent, of the voters of Oregon ap- 
proved in 1 9 10 a measure, which, in its true guise, had 
been defeated only two years before by a clear ma- 
jority. Was this intelligent action? 

One of the proposed constitutional amendments 
in 191 o provided for the purchase, condemnation or 
construction, and operation of railroads by the state. 
The idea of a state of Oregon's limited development 
and revenues attempting such a thing is on its face 
absurd, but the following vote shows how near the 
half-baked ideas of some crank came to receiving au- 
thority : 

For the amendment 34,013 

Against the amendment 46,1 12 

289 



THE INITIATIVE, REFERENDUM AND RECALL 

In other words, if 39.25 per cent, of all voters had 
voted for this amendment the state would have been 
authorized to engage in the railroad business. 

In 1908 a constitutional amendment was submit- 
ted increasing the number of supreme court judges 
from three to five, and simplifying procedure in the 
lower courts by giving circuit courts original jurisdic- 
tion of probate matters, then exercised by county 
courts. This excellent amendment was defeated. At 
the 1 910 election a most remarkable amendment, em- 
bodying all and more than was contained in the de- 
feated amendment, was proposed and adopted. It 
placed no limit on the number of supreme court judges 
but provided that lower courts and their jurisdictions 
might be changed by law, and stated prominently in 
the title that in civil cases three-fourths of a jury 
might render a verdict. 

The most objectionable features of this amendment 
are in section 3, which is as follows : 

" Section 3. In actions at law, where the value in 
controversy shall exceed $20, the right of trial by jury 
shall be preserved, and no fact tried by a jury shall 
be otherwise reexamined in any court of this State, 
unless the Court can affirmatively say there is no evi- 
dence to support the verdict. Until otherwise pro- 
vided by law, upon appeal of any case to the Supreme 
Court, either party may have attached to the bill of 
exceptions the whole testimony, the instructions of the 
Court to the jury, and any other matter material to the 
decision of the appeal. If the Supreme Court shall be 

290 



UNFAVORABLE RESULTS IN OREGON 

of opinion, after consideration of all the matters thus 
submitted, that the judgment of the Court appealed 
from was such as should have been rendered in the 
case, such judgment shall be affirmed, notwithstanding 
any error committed during the trial ; or if, in any re- 
spect, the judgment appealed from should be changed, 
and the Supreme Court shall be of opinion that it can 
determine what judgment should have been entered in 
the court below, it shall direct such judgment to be en- 
tered in the same manner and with like effect as de- 
crees are now entered in equity cases on appeal to the 
Supreme Court, provided that nothing in this section 
shall be construed to authorize the Supreme Court to 
find the defendant in a criminal case guilty of an of- 
fense for which a greater penalty is provided than that 
of which the accused was convicted in the lower court." 
It will be seen that there is apparently a conflict 
between the provisions of the first sentence of section 
3, relating to the effect of a verdict by a jury in an 
action at law, and the power and duty of the supreme 
court on an appeal when there is attached to the bill of 
exceptions by appellant or respondent, " the whole tes- 
timony, the instructions of the court to the jury, and 
any other matter material to the decision of the ap- 
peal." Under the familiar rule of construction that 
where, in a statute, there are apparently conflicting 
provisions they must be reconciled if it is possible to 
do so, section 3 should be construed to mean that the 
verdict of a jury cannot be reexamined by any court 
inferior to the supreme court, and only by the latter 

291 



THE INITIATIVE, REFERENDUM AND RECALL 

when the whole record is before it. Thus a circuit 
court cannot grant a new trial if there be a verdict of 
a jury with a scintilla of evidence to support it, even 
when such a verdict is outrageous or given under 
prejudice or passion; probably, not on account of 
newly discovered evidence. Once a verdict always a 
verdict until it reaches the supreme court. 

The appeal provided for in section 3 applies to 
both civil and criminal cases. The words are : " Upon 
appeal of any case to the supreme court " the provi- 
sions apply, and what are the provisions? Either the 
appellant or respondent may (and certainly the appel- 
lant always will) " have attached to the bill of excep- 
tion the whole testimony, the instructions of the court 
to the jury, and any other matter material to the de- 
cision of the appeal." The verdict of the jury in the 
court below is not necessarily even a guide to the su- 
preme court, which must be guided by " the whole 
testimony, the instructions of the court to the jury," 
and also " any other matter " that either the appellant 
or respondent may deem " material to the decision of 
the appeal." Judgment may be entered " after a con- 
sideration of all the matters thus submitted." If the 
supreme court decides for the respondent, it may do 
so not only, " notwithstanding any error committed 
during the trial " in the court below, but also it must 
consider whether the judgment " was such as should 
have been rendered in the court below," after a review 
of the whole testimony and also after considering 
" other matters " in the record. There may be similar 

292 



UNFAVORABLE RESULTS IN OREGON 

action by the supreme court in favor of the appellant 
if " it shall be of the opinion that it can determine what 
judgment should have been entered in the court be- 
low." By this method of appeal is not trial by jury 
practically abolished in Oregon ? And yet trial by jury 
has been in existence in English-speaking countries 
from the time of Anglo-Saxon rule in England until 
the present day. 

This amendment makes no provision for sending 
the case back to the lower court for re-trial. Its ap- 
parent-object is to authorize the supreme court to 
determine finally every law case appealed and also 
criminal cases, and to direct what judgment shall 
be entered in the court below. But also appar- 
ently it gives the supreme court power to dispense 
a kind of crude oriental justice according to its 
" opinion." 

Now note this additional confusion. Section 3 per- 
mits change by law of the powers conferred by it on 
the supreme court, as to determination of what judg- 
ments shall be entered in civil or criminal cases, but 
no law can change the first sentence of section 3. Only 
a constitutional amendment can affect that. Take the 
power from the supreme court to set aside a verdict 
and render a judgment, and a verdict once given, how- 
ever unjust or unfair, cannot be reexamined by any 
court. For centuries the jury has been a check on 
the tyranny and corruption of judges. Upright judges 
have corrected the verdicts of ignorant, prejudiced and 
venal juries. To do away with this balance of power 

293 



THE INITIATIVE, REFERENDUM AND RECALL 

is to set aside the best safeguards for justice which 
man has been able to devise. 

The first sentence of section 3 makes it appear that 
this section applies to civil cases only, but the rest of 
the section applies to criminal cases also. There is 
no limitation on the " appeal of any case to the su- 
preme court," but the limitation is " provided, that 
nothing in this section shall be construed to authorize 
the supreme court to find the defendant in a criminal 
case guilty of an offense for which a greater penalty 
is provided than that of which the accused was con- 
victed in the lower court." 

If the accused is convicted in a lower court of a 
crime for which he was not indicted nor tried, an ap- 
peal will lie. But the supreme court may find him 
guilty of an offense, without indictment, the only limi- 
tation being that it shall not find him guilty " of an 
offense for which a greater penalty is provided than 
that of which " he " was convicted in the lower court." 
The accused may be indicted in the circuit court for 
murder and convicted of rape or arson by the supreme 
court; indicted for burglary, and convicted on appeal 
of mayhem, or of some other crime against which he 
had no opportunity to make a defense. Take this 
amendment with its contradictory provisions and de- 
termine, if you can, what was in the minds of its 
framers. And how could the voters act intelligently 
thereon ? 

Then consider the vote by which this amendment 
was adopted — 44,545 for, and 39,307 against. The 

294 



UNFAVORABLE RESULTS IN OREGON 

approximate percentages of those who voted and those 
who did not, as compared with the votes for gov- 
ernor, were: 

For the amendment 37*85 

Against the amendment 33*40 

Not voting 28.75 

And thus less than thirty-eight per cent, of the 
voters amended the constitution to the prejudice of the 
rights of the other sixty-two per cent., and of them- 
selves, and imperil one of the safeguards of personal 
liberty. A leading advocate of the Oregon plan asked 
me lately why I let this amendment be printed in the 
official pamphlet without an argument against it. I 
admitted my delinquency and he voiced a favorite 
maxim of the advocates to the effect that I had no 
right to complain. I admit that I failed in my duty, 
but is that any reason why the rights of sixty-two 
per cent, of the voters, of women and of children yet 
to be born, should be imperiled, and that a minority 
should rule in so important a matter ? 

Thirty-two propositions at one election, most of 
them involving complex questions ! It took a pamphlet 
of 202 pages, not including the index, to present them, 
together with such arguments pro and con as were 
filed. How many of you would have time to study 
such a document even though you had six months for 
it ? And having the time how many of you would feel 
competent to pass on such a measure as the judiciary 
amendment, for example ? The Oregon supreme court 
has experienced some difficulty in construing amend- 

295 



THE INITIATIVE, REFERENDUM AND RECALL 

merits to the constitution made in the above manner, 
particularly those adopted under the initiative in 1906 
and intended to take from the legislature the power to 
enact, amend or repeal municipal charters and giving 
this power to the voters of the municipalities. These 
amendments failed to define what constitutes a char- 
ter; there were practically no precedents and the su- 
preme court found it necessary to amend these consti- 
tutional amendments by its decisions, by supplying 
omissions and by interpolating provisions not contained 
in the amendments themselves. 

But what becomes of the sacred right of the initia- 
tive and the doctrine that the people are always right ? 
Should a supreme court amend or set aside what the 
people in their wisdom (or unwisdom) have perpe- 
trated? So it has come to pass that the initiative 
amendments of the Oregon constitution, adopted to 
give the people absolute power, do not really make the 
people supreme, but do make the acts of the people, 
plus the supervision of the supreme court, supreme. 
Certainly to this extent the initiative is not what its ad- 
vocates intended it to be, although there is a large 
element of safety in such supervision and amendment 
by the supreme court. But what would be the result 
if the supreme court had held that the people had all 
the final power subject only to contrary provisions in 
the constitution of the United States ? 

Briefly to summarize, then, we find that the so- 
called " reserve " power is greatly abused; that meas- 
ures in overwhelming numbers and many of them 

296 



UNFAVORABLE RESULTS IN OREGON 

loosely drawn are being put upon the ballot ; that the 
percentage of those who do not participate in direct 
legislation is increasing; that lack of intelligent grasp 
of many measures is clearly indicated ; that legislation 
is being enacted by minorities to the prejudice of the 
best interests of the majority; and that the constitu- 
tion itself is being freely changed with reckless disre- 
gard of its purpose and character. 



20 



THE RECALL 

CHAPTER XII 

THE USE OF THE RECALL IN THE UNITED STATES. 1 

The recall expresses the idea that a public office is 
so vitally affected with the public interest that when 
its occupant ceases to perform his duties to the inter- 
ests of the community his official tenure may be ter- 
minated. The recall is based on the theory that the peo- 
ple must maintain a more direct and elastic control over 
their elective officials, or, to use a homely Oregonian 
phrase, that the people should be able to discharge 
their public servants " just as a farmer discharges his 

hired men." 2 

. — _ — — — — — — . — — 1 

iMr. Herbert S. Swan of Columbia University, the author of 
this chapter, is one of the committee investigators of the National 
League. 

» Contrary to popular belief the recall did not have its origin in 
Los Angeles in 1903. It was first embodied in the Articles of Con- 
federation which reserved to the individual states the right of recall- 
ing any or all of their delegates to Congress and of sending others 
in their stead. Although both Madison and Yates are silent in their 
reports concerning it, the recall no doubt was thoroughly discussed 
in the Federal Convention especially in regard to the recall of sena- 
tors. Luther Martin in his "Genuine Information" to the Mary- 

298 



USE OF THE RECALL 

A man who breaks a contract or who deceives his 
clients by making false pretenses is severely punish- 
able by our laws. But electorates may be wheedled 
and seduced, the public troth most atrociously outraged 
by insidious officeholders — all without redress, so long 
as no technical crime has been committed. Impeach- 
ment reaches only malfeasance, not misfeasance or 
non-feasance. There is a borderland outside of actual 
graft which the law of impeachment does not touch. 
Our statutes, as a rule, are not so framed as to cover 
the George Washington Plunkitt variety of " honest 
graft." In instances of this sort the courts are power- 
less. 

An English cynic once suggested that since moral 
perversity seemed to be the legislator's only infallibil- 
ity, good government might be readily achieved by in- 
verting the laws in their administration. Though expe- 
rience may give this theory more or less credence, the 
recall, however, is based upon the assumption that the 
official's interest can be conjoined with that of the peo- 
ple's by making his tenure dependent upon his con- 
stantly meriting the office. What has annoyed and 
thwarted more than anything else, might be called of- 
ficial aphasia. Just when the people have elected a 
man burning with patriotic zeal, he suffers some sort 



land legislature strongly opposed the adoption of the constitution 
because it omitted this feature. The principle also aroused a long 
and intensely interesting debate in the New York Convention. The 
two Livingstons, John Lansing, and Alexander Hamilton engaged 
in the controversy. 

299 



THE INITIATIVE, REFERENDUM AND RECALL 

of an intracerebral accident. He is no longer able to 
interpret vox populi. His memory fails him. His 
formerly clear-cut views upon public questions become 
confused and incoherent. Party platform and pre- 
election pledges now mean nothing, or, if they do, 
something very different from what they appeared to 
mean a short time ago. The ayes and nays in the legis- 
lative journal, when read in the glow of his former 
zest for public service, appear unintelligible, sometimes 
villainous. The recall proposes to aid the officeholder 
in retaining a candidate's state of mind. 

Nor is there any valid reason why a man honestly 
elected upon a platform which he honestly intends to 
carry out, should not, under certain circumstances, be 
recalled. Even though the representative's views 
might approximately at the time of election have re- 
flected those held by the represented, rising contingen- 
cies might tend to disturb and unbalance the intimacy 
of this relation. Conditions entirely unforeseen then 
might develop which would render a change of policy 
imperative. Surely legislators and councilmen ought 
to be amenable to changing, as well as to existing, 
public sentiment. The finiteness of human foresight, 
not less than the fallibility of the electorate's choice 
and the corruptibility of the official, argues for the re- 
call in a popular government. 

In passing upon the constitutionality of the Iowa 
law providing for city government by commission the 
court said in reference to the recall : " Public officers 
are created in the interests of the general public, and 

300 



USE OF THE RECALL 

not for the benefit of any individual. And no one in 
possession of an office has a constitutional right to re- 
main therein for the full period of the term for which 
he was elected. . . . As no contract right exists 
in favor cf the incumbent of an office it does not re- 
main for him to quarrel with the method of procedure 
adopted in removal from office." 

The recall is perhaps most valuable as a potential 
club to wield over recalcitrant officials. Without it, 
public opinion, no matter how well it may be organ- 
ized, loses one of its most potent weapons with which 
to inspire honest and efficient government. An inde- 
terminate tenure of office, for such the recall may be 
said to conduce, places a premium upon good service. 
Disrespect or indifference to the public will may be 
punished by a summary ejectment from office. A def- 
inite term doubtlessly makes the councilman more in- 
imical to crystallized public opinion. He may, or may 
not, give it speedy expression in the enactment of de- 
sired ordinances. In either case he feels tolerably 
secure of his seat. 

Threatening the use of the recall has on several 
occasions caused councilmen to abandon measures ob- 
jectionable to their constituents. A case in point is 
where the Los Angeles aldermen rescinded an im- 
mensely valuable franchise in a river bed in that city. 
Another instance illustrating its worth in this respect 
occurred in Des Moines. " When the matter of ap- 
pointing police marshal came up, three of the council 
voted for a man who had worked to secure their elec- 

301 



THE INITIATIVE, REFERENDUM AND 1.ECALL 

tion. The appointment was opposed by two of the 
councilmen, one of whom had charge of the depart- 
ment of public safety. Unwittingly one of ^ihe three 
above mentioned who voted for this appointment 
dropped some remark which led the public to believe 
there had been a promise made before election. This 
suspicion was furthered by the fact that the council- 
man in charge of the department of public safety op- 
posed the appointment. A petition for a recall of the 
councilman making the unfortunate remark was at 
once started. Before this reached the council, how- 
ever, that body had had a meeting and quickly revoked 
the appointment and appointed a police marshal who 
had public favor." 

The charge urged against the recall that it may 
be invoked to displace conscientious officials is not to 
be given much weight if proper precautions are taken 
in fixing the percentage required on the recall petition 
sufficiently high so as to remove the officeholder from 
factional spite. The malignant and wanton exercise 
of the recall in displacing or harassing conscientious 
officials would so arouse the public condemnation that 
the measure could not help falling through. This, 
moreover, has been the actual experience of the recall. 
In Fort Worth, Texas, an attempt was made to re- 
move a commissioner who had enforced the law in the 
" red light " district. The law-abiding people unani- 
mously rallied to his support, and his enemies failed 
to obtain the necessary per cent, petition to force him 
to stand for reelection. When the police superintend- 

302 



USE OF THE RECALL 

ent of Des Moines, Iowa, suppressed gambling, repre- 
sentatives of that interest visited him at his office and 
told him that if he did not permit the reinstallment 
of slot machines a recall would be started to remove 
him. The superintendent immediately had the inci- 
dent printed in the newspapers and the recall did not 
materialize. 

In San Bernardino, California, two councilmen who 
voted for letting the public advertising to a firm not 
the lowest bidder were summarily ousted by their con- 
stituents. In San Diego, a councilman, whose conduct 
" ever since he entered upon the duties of said office 
had been in opposition to the will and preference of 
his constituents, and obstructive to the best interests 
of the city," came within an ace of being recalled. He 
was spared the disgrace only by resorting to the courts 
which delayed the proceedings until his term expired. 
The recall was exercised against a councilman in Ever- 
ett, Washington, who was " using the influence of his 
position to revive a certain franchise to the prejudice 
of the city." In Los Angeles, Mayor Harper was re- 
called a little over a year ago for failing to enforce 
the law against gambling, prostitution, and the sale of 
liquor. In Oregon the recall has been used twice. 
All the elective city officials except one, the recorder, 
were removed a year ago last spring at Estacada. The 
charge made was gross mismanagement of the city 
business. At Junction City the mayor had a few weeks 
earlier been recalled by a vote of four to one. Last fall 
two school directors were recalled in Dallas, Texas, 

303 



THE INITIATIVE, REFERENDUM AND RECALL 

on the ground of discharging teachers and appointing 
others in their stead because of political motives. Only 
recently the mayors of Seattle and Tacoma, Washing- 
ton, have been recalled. In the former city, it was 
alleged that the executive failed to enforce the police 
laws " permitting the city to become a home and ref- 
uge for the criminal classes " ; in the latter, the cause 
of recall was found in general inefficiency and gross 
mismanagement of public business. 

There ought, perhaps, to be an initial period of 
some two or three months during which a newly 
elected commissioner should be immune from the lia- 
bility of recall. This would not only give a council- 
man a chance to outline his policies, but would also 
give time for the partisan ill-feeling aroused during 
the campaign to cool. But the entire history of Amer- 
ican politics precludes scoring any point for the short 
time exemption on the latter ground. Politically our 
candidates are game losers. To bolt the party ticket, 
no matter what the merits or demerits of the case, has 
universally been regarded as a cardinal sin. The mug- 
wump has always been ostracised. No doubt custom 
would execrate the would-be-post-election guerilla, 
who has just been disappointed in his office-seeking 
hopes, as a most abominable enemy to the people. 

In most cities a recall may be effected at any time 
during the officer's term. Yet in several instances it 
is provided that no proceedings may be brought 
against an incumbent during the first three or six 
months. In Boston, where the mayor now holds office 

304 



USE OF THE RECALL 

for four years, a recall may only be had after two 
years by the majority of the voters. St. Joseph al- 
lows no such election to be held " within three months 
after the election and qualification of any city officer, 
nor within three months prior to the expiration of his 
term of office." Instead of prohibiting proceedings 
against an officer near the end of the term thus, some 
charters permit the council discretion to refuse action 
if a general election occurs within sixty days. Lewis- 
ton, Idaho, is the only city that expressly denies the 
filing of more than one petition during an officer's term. 
In Oregon no petition may be circulated against any 
state officer " until he has actually held his office six 
months, save and except that it may be filed against a 
senator or representative in the legislative assembly at 
any time after five days from the beginning of the first 
session after his election. 1 After one such petition and 
special election no further recall petition shall be filed 
against the same officer during the term for which he 
was elected unless such further petitioners shall first 
pay into the public treasury which has paid such special 
election expenses, the whole amount of its expenses for 
the preceding special election." 

To absolutely prohibit proceedings several months 
prior to the term's end tends to make the recall nuga- 



1 The recall in Oregon applies also to the judiciary. The Arizona 
constitution is modelled after that of Oregon in this respect. Cali- 
fornia will in October vote on a constitutional amendment extending 
the recall to every department in the state government including the 
judiciary. 

305 



THE INITIATIVE, REFERENDUM AND RECALL 

tory in remedying the evils for which it is instituted. 
This objection applies still more emphatically to the 
Lewiston charter, which specifically limits an officer's 
liability to one time. The discretion resided in the 
council as to the warrantableness of such drastic action 
ought to be made so elastic as to empower that body 
to refuse relief if a general election is only a short time 
distant. 

So long as the voter may not at any time recall his 
chosen representatives his franchise is only a remnant. 
The right to elect and the right to recall — each comple- 
ments the other. A full and complete electoral fran- 
chise includes both. A suffrage embracing one but not 
the other is fragmentary and only putatively demo- 
cratic. The recall will lend some purpose to political 
discussion. At present it is insipid, meaningless. Men 
regularly go in and out of office by fixed batches — 
their tenure, instead of bearing any relation to dynamic 
political conditions, is, in the words of Bagehot, " rigid, 
specified, dated." Nothing can be accelerated, nothing 
retarded. What business is there at present in atten- 
tion to politics ? 

There is little danger of the recall being used too 
often. As Mr. Davis has indicated in the Proceedings 
of the National Municipal League for 1906, it is far 
easier to get a man to sign a petition for than against 
a person. 1 And there is need to be wary. In signing 
a petition making untruthful charges, the elector ren- 

1 

* See below p. 317. 
306 



USE OF THE RECALL 

ders himself susceptible to a criminal libel suit. The 
experience in Los Angeles has been that more than 
twice as many people are willing to vote for removal 
of an officer when it comes to the recall election than 
are willing to sign the petition. The percentage of 
signatures required on the petition should therefore 
not be too high — twenty-five per cent, being in all or- 
dinary conditions adequate. Thirty-five, forty per cent. 
clearly annuls its use. 

The percentage of signatures required on the peti- 
tion is* twenty in St. Joseph, Fort Worth, Grand Junc- 
tion and Berkeley; twenty-five in Iowa, Kansas, Ore- 
gon, Austin, Texas, and Lewiston, Idaho; thirty in 
Colorado Springs ; and thirty-five in Dallas, Texas, and 
Tulsa, Oklahoma. In some of the non-commission 
cities in California it rises as high as forty, fifty-one 
and even sixty per cent. The sagacious statesmen in 
the Illinois legislature last year fixed the percentage 
for that state at seventy-five. The basis on which the 
percentage is reckoned varies greatly in the different 
cities. In Los Angeles the standard taken is " the vote 
cast for all candidates for the office at the last general 
city election." In Iowa, it is " the entire vote for all 
candidates for the office of mayor at the last preceding 
general municipal election " ; in Fort Worth, " the en- 
tire number of persons entitled to vote in said city at 
said time " ; in Grand Junction, " the last preceding 
vote cast for all the candidates for governor of the 
state of Colorado by the electors of the city " ; in Bos- 
ton, " a majority of the qualified voters registered in 

307 



THE INITIATIVE, REFERENDUM AND RECALL 

said city for state election " ; in Oregon, " the electors 
who voted in his district at the preceding election for 
justice of the supreme court" 

If the office which usually receives the least total 
vote be taken as the basis for the recall petition, the 
same result is arrived at as if a low percentage of sig- 
natures were required in order to effect a recall. The 
fairest test would probably be the total number of 
votes cast for the office in each particular instance. 
But whatever office be taken as a standard, the recall 
should in the election of that one incumbent encourage 
a very heavy poll because every " stay-at-home " vote 
in that one election would potentially depreciate and 
jeopardize the permanence of all other official tenures 
by just so much facilitating a possible recall in the 
future. If the basis for the recall petition for each of- 
fice, however, be its own total vote at the last preced- 
ing election, then, theoretically, all offices ought uni- 
formly to poll a heavy vote. 

Generally, only one election is sufficient to decide 
whether the incumbent is to continue in office, and, if 
he is removed, who is to succeed him. But in some 
cities, of which Dallas, Texas, Tulsa, Oklahoma, and 
Tacoma, Washington, are instances, something similar 
to the French ballotage and identical with the German 
engere Wahl has been adopted — that is, if more than 
two candidates run for an office and none receives an 
absolute majority of all the votes cast, then this elec- 
tion serves only as a primary to a supplementary elec- 
tion in which only two candidates, the ones receiving 

308 



USE OF THE RECALL 

the highest and second highest number of votes at the 
primary, are the competitors. 

When Tacoma, Washington, recalled her mayor, 
last spring, there were in addition to the officeholding 
mayor two other candidates for the office. Though 
sixty-two per cent, of the voters in this first election 
indicated that they desired a change in the mayoralty, 
they were not unanimous in their choice as to the in- 
cumbent's successor, forty-five per cent, voting for one 
candidate and seventeen per cent, for another. Even 
though Mayor Fawcett had obviously lost the public 
confidence, since he received only thirty-eight per cent, 
of the total vote polled, he was permitted through this 
proviso in the Tacoma recall to stand for still another 
election, the first being now considered merely a pri- 
mary. The people, however, again repudiated him, 
and elected his opponent. 

Aside from these few cities, the people are spared 
and expense of a second election since a plurality is all 
that is needed to elect a successor to the one recalled. 
To this there is but one exception, that of Austin, 
Texas. There a practice more peculiar than the one 
just described exists — a practice no doubt devised by 
designing politicians in order to bring the recall into 
great disfavor, if not to render it altogether inopera- 
tive. In Austin the bare issue of recall is first pre- 
sented to the people at a special election when it has 
been so petitioned by the necessary percentage of 
voters. If they decide in favor of a recall at this elec- 
tion, the office is summarily declared vacant and the 

309 



THE INITIATIVE, REFERENDUM AND RECALL 

incumbent is forbidden to be a candidate to succeed 
himself. His successor is then selected by the method 
used in Tacoma. The clumsiness of the Austin char- 
ter necessitates never less than two elections, and 
sometimes, when an absolute majority of the voters 
are disunited and refuse to support some one candi- 
date, three elections are necessary in order to recall 
an official. 

The successor to the one removed usually holds 
office only during the unexpired term. Boston is the 
sole exception to this rule. There, at the general state 
election in the second year of the mayor's term, the 
question is submitted to the voters whether they wish 
a new election for mayor to be held at the city elec- 
tion in the following January. If a majority of the 
registered voters answer this question in the affirma- 
tive, such an election is held. If a new election is 
held, it is for a four-year term, with a similar power 
of recall in the second year. Cases where the recalled 
officer is afterwards publicly discriminated against are 
not altogether wanting. Berkeley, California, was the 
first to prohibit one who has been removed, or who has 
resigned while such proceedings were pending against 
him, from being appointed to any office within one 
year. Other cities, such as Grand Junction and Colo- 
rado Springs, Colorado, have copied this provision into 
their charters word by word. 

The city clerk is almost without exception allowed 
extra help by the council in examining the validity of 
the signatures. The charter of Lewiston, Idaho, some- 

310 



USE OF THE RECALL 

what differently from the Oregon law, provides, how- 
ever, that such extra help, not exceeding in cost the 
sum of one hundred dollars is to be paid by the peti- 
tioners who shall deposit the sum necessary with the 
city clerk at the time of filing the petition. Any sur- 
plus in the amount deposited over and above the ex- 
pense incurred shall be returned to the persons by 
whom the same was deposited. With this exception, 
and all elections held against an official in Oregon sub- 
sequent to the initial one, the cost incident to the re- 
call election is made a public charge. 

The strongest case against the recall is, perhaps, 
its expensiveness. In a large city the size of New 
York or Chicago, it probably would be prohibitory. In 
Los Angeles the cost incurred through its exercise is 
said to have been nine thousand dollars, a sum the Cal- 
ifornians considered a mere bagatelle compared to the 
benefits derived from its exercise. The wisdom of 
having the petitioners stand the cost of certifying and 
verifying the signatures as in Lewiston, Idaho, is open 
to serious doubt. In some states it certainly would be 
held unconstitutional for being a new and additional 
qualification for the exercise of the suffrage. It vir- 
tually constitutes a property "qualification upon the 
right to vote. 

The recall is of special significance, since if it 
prove practicable, and this its limited experience seems 
to promise, it may become the means of a most salu- 
tary improvement in municipal government — the 
lengthening of the term for elective officials. Its in- 

311 



THE INITIATIVE, REFERENDUM AND RECALL 

corporation into city charters has already shown a 
movement in this direction. Berkeley and San Diego, 
California, Colorado Springs and Grand Junction, Col- 
orado, have extended the term of the councilmen, or 
commissioners, to four years. Illinois, also, provides a 
four-year term; South Dakota a term of five years. 
Where the recall has been introduced it seems to be 
expected that public opinion will supersede the need of 
actual voting. There can be no doubt that all super- 
fluous elections, and hence all needlessly short terms 
of office, complicate politics and weary the elector. 



CHAPTER XIII 

THE RECALL AS A MEASURE OF POPULAR CONTROL 

In an address at the Atlantic City meeting (1906) 
of the .National Municipal League Thomas A. Davis 
contributed this discussion. 

Before election candidates as a usual thing are pro- 
fuse with promises, but it is remarkable how quickly 
after being elected these promises are forgotten and 
how the wishes of the people are thrown to the winds. 
Instead of conducting municipal, county and state gov- 
ernments for the people, in many cases we are forced to 
the conclusion that the members of these public bodies 
elected by the people even sit there as the paid repre- 
sentatives of private interests, while the public treasury 
is looked upon as the proper thing to be robbed and 
plundered. 

As a usual thing candidates are elected or appointed 
to public office for terms ranging from one to five 
years. After they have been inducted into the office, 
no matter how shameful or degrading their conduct 
may be, there is not at the present time any adequate 
manner in which the public can call to account an err- 
ing public servant. The public servant becomes the 
21 313 



THE INITIATIVE, REFERENDUM AND RECALL 

public master for the balance of his term, and in many 
cases we have seen these acts of a man committed dur- 
ing his term forgotten when his term is about to ex- 
pire, and the person reelected to the office with perhaps 
an increased majority. Of course, such an occurrence 
as this is due to apathy and indifference of the electors, 
and so long as they are willing to remain in that state, 
they probably get about as good government as they 
deserve. 

If a man employs an agent for a term of years by 
contract, and that agent betrays his principal, the prin- 
cipal may terminate the contract and get rid of the 
faithless one. Officeholders stand in the same position 
to the public as the agent does to the principal. They 
are simply the instruments for carrying on the business 
of the public, and if they are faithless in performing 
their duties the law should provide adequate means 
for getting rid of them and putting others in their 
places. This thought no doubt has been in the minds 
of people for a long time, but it was not until such 
a method of procedure, which has been designated the 
recall, was put into effect in Los Angeles, California, 1 
that this section of the country came to the conclusion 
that their theories had materialized in the Far West, 
and an agitation has been accordingly started to con- 
sider the advisability of such a law in New Jersey. 

The recall is a method by which it is possible for 

» See the paper of Charles D. Willard on Los Angeles in the New 
York volume of Proceedings of the National Municipal League for 
further references to the recall. 

314 



A MEASURE OF POPULAR CONTROL 

the public to free itself from incompetent and objec- 
tionable officials. As outlined in the Los Angeles stat- 
ute the law applies to elective officers. If the public 
wishes to vacate the office of an objectionable official, 
a petition must be signed by twenty-five per cent, of 
the entire vote for all candidates for that office, de- 
manding the election of a successor to the officer 
sought to be removed. The petition must state the 
grounds upon which the removal is sought. The sign- 
ers must put their addresses after their names and the 
whole petition shall be verified by the oath of at least 
one person who saw all of the others sign. The peti- 
tion, thus verified, is filed with the city clerk, who 
within ten days after filing examines it for the pur- 
pose of ascertaining if the necessary number have 
signed, and issues a certificate as to his finding. If 
he finds the petition insufficient, it may be amended in 
ten days after the issuance of his certificate. If still 
insufficient after such amendment, it is returned to the 
petitioners without prejudice against the filing of an- 
other petition. If the petition is found by the clerk to 
be sufficient, he issues his certificate to the municipal 
governing body to that effect. The governing body 
shall then order an election to be held within not less 
than thirty days and not more than forty days from 
the date of the certificate. The election shall be con- 
ducted as other elections are conducted. The Los An- 
geles statute provides that the person sought to be 
removed may be a candidate to succeed himself, unless 
he requests otherwise in writing, and unless he so 

315 



THE INITIATIVE, REFERENDUM AND RECALL 

requests the clerk puts his name on the ticket as a can- 
didate. If some candidate other than the incumbent 
receives the highest number of votes he shall be elected 
and serve for the unexpired time of the person com- 
plained against, who shall be removed. If the incum- 
bent receives the highest number of votes he shall con- 
tinue in his office. These, briefly, are the provisions 
of what is designated as the recall, and are a part of 
the statute law governing the city of Los Angeles. 

In the consideration of it here the first question 
naturally would be, do we need it? It would appear 
to me to be unnecessary to go into any extended argu- 
ment to convince all present and all who are not pres- 
ent that if the recall will do what the provisions that 
I have stated allege, then we undoubtedly need it and 
need it very badly, and have needed it for a great 
many years. Probably there are very few here present 
who have followed municipal, county and state affairs 
in New Jersey who do not now conclude that had we 
the recall in New Jersey in years gone by, and if things 
then happened that have happened, the law would cer- 
tainly have had to work overtime. Without particu- 
larizing instances, we can recall to our minds cases 
within our knowledge where the people of our own 
neighborhoods would have welcomed it, in order to 
rid themselves of officials not only incompetent, but 
whom we believe to have yielded to the corrupting 
influence of money. 

The next question that might be asked is, is recall 
fair to official and to people ? In Los Angeles twenty- 

316 



A MEASURE OF POPULAR CONTROL 

five per cent, of the entire vote for an office is required 
to be signed to a petition before the machinery of recall 
can be set in operation. Considering the fact that 
for an ordinary office there may be from three to six 
candidates, this percentage would certainly seem to be 
large enough to remove the suspicion of unfairness, 
because it is far easier to get a man to sign a petition 
for a person than it is to sign one against a person. 
Were the recall adopted in New Jersey the percentage 
might not be fixed at twenty-five per cent. ; it might 
be mo're or it might be less. So far as the incumbent 
is concerned, after the petition is filed against him he 
still has the opportunity under the method of procedure 
to vindicate himself, and if he makes no move at all 
the law orders him put upon the ticket as a candidate 
for reelection. It seems, therefore, that the provisions 
are equitable in attempting to take care of both accused 
and accuser. 

Query might be made, is it not likely that the right 
to petition might be abused and petitions filed without 
just cause? I think we can safely say there would 
be no danger of abuse of the right to petition. The 
experience of those familiar with municipal bodies is 
that even now the people of a neighborhood may tol- 
erate an abuse of their rights for a considerable time 
before petitioning their local governing bodies for a 
correction of the abuse. Again, if the percentage of 
the electors required to sign is made, for example, 
twenty-five per cent., it would be impossible to pro- 
cure such a number of signers unless the petition was 

317 



THE INITIATIVE, REFERENDUM AND RECALL 

based upon justice. Publicity and public opinion are 
the great influences in our country to-day, and when 
the movement to put into operation the machinery of 
recall is begun, it must receive the approval of the 
people or it will absolutely fail. 

We have in the state of New Jersey to-day a law 
which permits a small number of taxpayers (twenty- 
five) to petition a supreme court justice for the ap- 
pointment of a commissioner to investigate municipal 
and county affairs. The number of signers required 
is so small that it might be easily abused, yet all we 
have to do is read the newspaper accounts of such in- 
vestigations to be convinced that in every case where 
application was made and a commissioner appointed, 
the investigation should have been carried on. 

There is one provision of the Los Angeles plan 
which, to my mind, should be enlarged upon if the 
state of New Jersey is to adopt the plan of recall. 
The Los Angeles plan apparently applies only to elec- 
tive municipal officials. I can see no good reason, if 
we should ask for the enactment of a statute, why it 
should not be embodied in a general law and why 
officials affected should not be municipal, county and 
state officials, both elective and appointive. 

In the municipalities to-day , there are very few 
officials elected outside of the mayor, the governing 
body, and the board of education. Practically all the 
other officials, such as assessors, tax commissioners, 
fire commissioners, police commissioners, boards of 
health, boards of assessment, and city officials are ap- 

318 



A MEASURE OF POPULAR CONTROL 

pointed either by the mayor or the governing body, 
while in the counties and state there are innumerable 
boards and officers that are not elected at all, but are 
appointed by an officer or a body, which is itself 
elected. It seems to me that the recall should not stop 
as in Los Angeles at elective officers, but all officers, 
boards or bodies, whether elective or appointive, should 
be amenable to the public and it should be within the 
power of the people to call them to task whenever their 
conduct justifies it. The method of procedure out- 
lined -in the Los Angeles statute covers the point as 
to elective municipal officers. Of course, if we go be- 
yond this and embrace municipal, county and state 
officials, elective and appointive, the modus operandi 
would have to be framed to suit the case. 

It is rather difficult to say, without discussion and 
consideration, what method of procedure should be 
adopted to bring the provisions of recall to bear upon 
an appointive officer. The Los Angeles provisions will 
not apply. This is a question that might well be dis- 
cussed until a proper plan is adopted, if the suggestion 
appears to be a proper one. It seems to me that in the 
case of an appointive officer the petition to be signed 
by a certain percentage or number of taxpayers should 
be presented to the appointing power in the shape of 
charges, and the appointing power should either place 
the accused on trial before itself upon the charges, or 
appoint a commission, outside of its own number, to 
hear the charges and conduct the trial. If the accused 
is found guilty that should terminate his right to hold 

319 



THE INITIATIVE, REFERENDUM AND RECALL 

the office, and if not guilty he should be allowed to 
continue therein. 

In the last session of the New Jersey legislature, 
two bills prepared by a committee of the New Jersey 
Civic Federation were introduced, attempting to put 
the recall into effect in the state of New Jersey. The 
bills were known as Senate Bills Nos. 169 and 170. 
They were referred to a committee but were not en- 
acted into laws. It was hardly expected that the bills 
would be enacted into laws at the session at which 
they were introduced, but the purpose of having them 
prepared and introduced was to attract the attention of 
the public, and induce discussion on the recall principle. 
Several societies have already discussed the subject, 
and it is hoped that it will be widely discussed before 
another legislature shall meet, at which time the pas- 
sage of a recall law will be urged with the expectation 
that such a law will find its way into the statute books 
of the state of New Jersey. 



CHAPTER XIV 

THE RECALL IN LOS ANGELES * 



In the autumn of 1899 the citizens of Los Angeles, 
believing that their charter (adopted in 1889 when 
the municipality had scarcely reached the proportions 
of a good-sized town) had become inadequate to meet 
the newer conditions, elected a board of freeholders 
for the purpose of drafting a new charter. When 
this body had nearly completed its draft, however, 
the supreme court of California decided, upon a tech- 
nical point, that the board was not legally consti- 
tuted, and its draft could not be submitted to the 
people. When a new board was chosen, however, 
much of the work done by its predecessor was util- 
ized, and in 1902 the voters were given the oppor- 
tunity of passing upon a new charter which contained, 
among other novel provisions, an arrangement for 
the recall of elective officers. After the adoption of 
the charter at the polls it went before the state legis- 

1 A summary of an article by Charles Dwight Willard, secretary 
of the Los Angeles Municipal League, in La Follette's Magazine, Au- 
gust 7, 1909. 

321 



THE INITIATIVE, REFERENDUM AND RECALL 

lature for ratification, and there a vigorous opposition 
to the recall feature was encountered. For a time 
it appeared as though this provision might be elimi- 
nated. The precedent, however, was for the un- 
conditional acceptance of all charters which had 
been endorsed by the voters of a city and the 
legislature did not, in the end, venture to depart from 
this. 

After the final adoption of the new charter in 
1903 it was not long before the recall provision was 
put into active use. The city council of Los Angeles 
was at this time made up mainly of machine poli- 
ticians, who derived much of their strength from the 
aggressive support of a Republican newspaper. When 
the contract for the city's printing was about to be 
awarded it was found that the proposal made by this 
newspaper was about $15,000 above that made by the 
lowest bidder, — an independent journal. Neverthe- 
less, the council awarded the contract at the higher 
figure. 

It happened, however, that the newspaper which 
secured the contract was an aggressive antagonist of 
the local labor unions. It was conducted on the prin- 
ciple of the open shop. The labor leaders, accordingly, 
opened a campaign of protest against the award, and 
in due course took steps to secure the recall of a coun- 
cilman from the sixth ward of the city. This coun- 
cilman had voted for the award, although a large 
number of workmen voters were enrolled in his ward. 
The necessary signatures for a recall petition (twenty- 

2,22 



THE RECALL IN LOS ANGELES 

five per cent, of the votes polled at the last election) 
were secured and a recall election ordered. An oppos- 
ing candidate was secured and at the election won by 
a very large majority. 

The second use of the recall in Los Angeles 
brought the voters of the whole city and not merely 
those of a single ward into action. At the municipal 
elections of 1906 there was a strong sentiment in Los 
xAngeles that the government of the city should be en- 
tirely non-partisan, and an organization was created 
to help bring this to pass. A slate of candidates was 
put in the field, and in addition to this there were, of 
course, tickets put forward by the Republican and 
Democratic party organizations. It happened that all 
three candidates for mayor were well known and the 
result of the election would have been very close had 
not the Republican machine, in the closing days of the 
campaign, thrown its strength to the Democratic can- 
didate, thereby electing the latter. The mayor-elect 
was Mr. A. C. Harper, an officer in one of the largest 
Los Angeles banks and a business man of excellent 
standing. He was duly installed in office and began 
with the advantage of a general popular impression 
that he would conduct a highly successful administra- 
tion, notwithstanding the methods used by party lead- 
ers to secure his election. 

But events soon dispelled this illusion. The appoint- 
ments which Mayor Harper made during his first year 
in ofiice were of a poor type, and rumors that the 
mayor was shielding wrong-doers from the enforce- 

323 



THE INITIATIVE, REFERENDUM AND RECALL 

ment of the laws were soon in currency. Matters came 
to a head when the city prosecutor, Mr. T. L. Wool- 
wine, made newspaper attacks upon the mayor and 
several of his officials, charging them with the protec- 
tion of vice. Newspapers printing the charges were 
at once sued for libel. But before the matter could 
be threshed out in the courts the Municipal League 
of Los Angeles held a meeting and, after full discus- 
sion, instructed its executive committee to undertake 
the circulation of a petition for the mayor's recall. 
Eight thousand certified signatures were necessary; 
but within a fortnight eleven thousand had been se- 
cured, and an election was ordered. 

Some difficulty was experienced in securing a can- 
didate to take the field against Mayor Harper, but Mr. 
George Alexander, who had been for a number of 
years county supervisor, was prevailed upon to under- 
take the leadership of the anti-Harper forces. Before 
the election came on there were some additional dis- 
closures concerning Mayor Harper's connection with 
wrong-doing, and upon the publication of these he de- 
cided to resign. This action was taken two weeks be- 
fore the day set for polling. The council which, un- 
der the charter, had the right to fill vacancies, chose 
a mayor pro tempore, and the election was allowed to 
proceed. 

The only remaining name upon the official ballot, 
in addition to that of Mr. Alexander, was the name of 
Mr. Fred C. Wheeler, a candidate put forward by the 
Socialists. The Harper supporters now threw their 

324 



THE RECALL IN LOS ANGELES 

strength to Mr. Wheeler, and made a vigorous attempt 
to secure his election. They were not successful, how- 
ever, and Mr. Alexander won by a majority of about 
i, 600 votes. The consensus of opinion is that he 
made a successful mayor ; he was renominated and re- 
elected at the two succeeding elections. 



CHAPTER XV 

THE RECALL IN SEATTLE 1 

On March 6, 1906, the voters of Seattle by a ma- 
jority of 8,047 out °f a tota l vote °f IO >577 wrote 
into the city charter the provision for the recall of 
all elective officers of the municipality. 

The process is simple. " A petition signed by 
voters entitled to vote for a successor to the incum- 
bent, equal in number to at least twenty-five per centum 
of the entire vote for all candidates for the office, the 
incumbent of which is sought to be removed, cast at 
the last preceding general municipal election, demand- 
ing an election of a successor of the person to be re- 
moved " must be filed with the city clerk. This peti- 
tion must bear " a general statement of the grounds 
for which removal is sought." " The signatures need 
not be appended to one paper, but each signer shall 
add to his signature his place of residence, giving the 
street and number." " Any person competent to make 
affidavit may circulate " the petition and " shall make 
oath before an officer competent to administer oaths 

that the statements therein made are true, and that 

s 

» By Fred Wayne Catlett, secretary to the mayor of Seattle. 

326 



THE RECALL IN SEATTLE 

each signature to the paper appended is the genuine 
signature of the person whose name purports to be 
thereunto subscribed." Ten days are allowed the city 
clerk to check the signatures with the poll books. In 
any case he must attach a certificate " showing the 
result of the examination." If this certificate shows 
the petition insufficient, ten days are allowed for the 
filing of a supplementary petition. Ten days more 
are given the clerk to check this petition. If insufficient, 
the whole petition is returned to the person filing it 
" without prejudice to the filing of a new petition." 
If a petition is found " sufficient," the clerk must so 
certify to the city council at once, and it must set the 
date for the election " not less than thirty days nor 
more than forty days from the date of the clerk's cer- 
tificate." All the ordinary steps to hold an election 
are taken. The incumbent's name is placed on the bal- 
lot " unless he requests otherwise in writing." The 
candidate receiving the highest number of votes is 
chosen to serve out the remainder of the incumbent's 
term. 

That is the whole of the " recall " charter provis- 
ion. At its first trial it was discovered that it provided 
no method of nominating opponents of the incum- 
bent. Fortunately the state legislature was in session 
at Olympia, and an act known as chapter 2 of the Ses- 
sion Laws of 191 1 was rushed through as an emer- 
gency measure, providing for nomination by petition 
signed by electors equal in number to not less than 
five per cent, of the total vote cast for the incumbent 

327 



THE INITIATIVE, REFERENDUM AND RECALL: 

against whom the recall is directed. Each elector 
signs his place of residence, his business, and his ad- 
dress by street and number. This petition must be 
filed with the city clerk ten days before the election. 

A short time thereafter, to cure another defect, 
chapter 6 of the Session Laws of 191 1 was enacted, 
granting each candidate the privilege of appointing 
challengers at each polling place, one of whom is en- 
titled to be within the polling place during the whole 
time the polls are open. 

In practice the recall has been operated as fol- 
lows : Those favoring a recall of an officer have or- 
ganized an association, collected funds, formulated cer- 
tain very general charges of inefficiency, and malad- 
ministration, printed many hundreds of petitions, and 
placed them in the hands of anyone willing to take 
them. 

At the top of each petition is the general statement 
of the charges, which may or may not have any foun- 
dation in fact. In the attempted recall of Mayor Dill- 
ing, precisely the same set of charges was used as in 
the recall of Mayor Gill, though some of them seemed 
inapplicable. Below the charges is the statement that 
the signer is a voter entitled to vote for a successor 
to the incumbent, and space for from ten to fifty 
names. At the bottom is the oath required by the law 
of the person taking the signatures. It is an " im- 
possible " oath, for it requires the passer of the peti- 
tion to swear that the statements therein made, i. e. y 
that the signer is a voter, qualified to vote for a suc- 

328 



THE RECALL IN SEATTLE 

cessor to the incumbent, that his residence is such 
and such a street and number, are true, and that each 
signature to the petition is the " genuine signature of 
the person whose name purports to be thereunto sub- 
scribed." In a city of two hundred and fifty thousand 
people, as a practical matter, no person passing a peti- 
tion can honestly take such an oath to one name in 
ten. As it is actually worked, petitions are placed in 
the hands of many irresponsible people who indiscrim- 
inately solicit signatures on the streets and in the office 
buildings, ignorant in the great majority of cases not 
only of the voting qualifications of the signer, but also 
of the genuineness of the name and signature. 

Some of this passing of petitions is done gratui- 
tously, but much of it is also undertaken by paid solici- 
tors — though sometimes paid by the day, more often it 
is at so much per name, generally ten cents. This is 
a great incentive to careless work on the part of the 
solicitor and a cause of some irresponsible and thought- 
less signing by voters. Any name which sounded like 
the name of a real person counted for the ten cents, 
and payment was necessarily made before the check- 
ing by the city clerk. Solicitors, when asked why the 
voter should sign, often replied, "Oh, I don't know; 
all I know is, that I get ten cents a name." If the 
voter had no settled convictions, he signed to be a 
" good fellow and help along." 

As soon as the association having the matter in 
charge thinks it has a safe margin of signatures above 
the required number, it calls in the petitions and car- 
22 329 



THE INITIATIVE, REFERENDUM AND RECALL 

ries them to the clerk's office, where they are counted, 
numbered and receipted for. The names on each peti- 
tion are also counted and the total number of signa- 
tures determined. If the total number is less than 
twenty-five per cent, of the total vote cast for the office 
at the "last preceding general election/' the petition 
— for all the separate sheets are regarded as one peti- 
tion — is not filed but returned to the association. The 
presentation of a petition prima facie sufficient is juris- 
dictional. 

But if it is prima facie sufficient, the checking be- 
gins. In practice in this city two or three checks are 
made. On the first check all questionable signatures 
are thrown out. On the second and third check, those 
thrown out are reexamined and many of them are 
restored. The causes for the rejection of names are 
no registration, illegible or forged signatures, improper 
addresses, and, in the case of the women, signatures 
with the initials of the husband. The parties inter- 
ested always keep paid or voluntary workers to guard 
the checking. Disputed names are referred to the 
comptroller or his deputy for decision. If the dispute 
turns on a question of law, the opinion of the corpora- 
tion counsel is asked and followed. If the number 
of genuine signatures exceeds the required twenty-five 
per cent, the comptroller certifies it to the city council 
as " sufficient." 

If the number is found insufficient, the person fil- 
ing the petition is notified and has ten days to make 
up the deficiency. As only two filings are contemplated 

330 



THE RECALL IN SEATTLE 

under our law, he and his association make haste to 
collect all the signatures possible and file them before 
the expiration of the time limit. This supplementary 
petition is checked in the same manner as the original 
petition. If it contains enough genuine signatures to 
make up the deficiency, the comptroller certifies it as 
" sufficient " unless before his certificate is made out 
enough of the genuine signatures are withdrawn to 
render it insufficient. 

The recall law is silent about withdrawals, but a 
decision of our state supreme court had affirmed the 
right to withdraw names from an initiative petition, 
and the corporation counsel advised the comptroller to 
accept them in the case of the recall. Then the ques- 
tion arose over the form of the withdrawal. Must the 
request to withdraw a name be verified before a no- 
tary as was the original signature? Where the with- 
drawal was secured by personal solicitation, there was 
no difficulty, but where the withdrawals came in by 
mail, verification was a practical impossibility in many 
cases. Our city comptroller agreed to count the postal 
withdrawals if all were verified by the oath of the 
person in charge of their collection that each card 
had been received in due course of mail through the 
United States Post Office, and that he believed the 
signatures to be genuine. It is quite apparent that 
this oath, also, furnishes no adequate safeguard 
against fraud. 

Seattle has given the recall two trials — very differ- 
ent in character and result, thus serving to test the 

331 



THE INITIATIVE, REFERENDUM AND RECALL 

law in many different respects. For the sake of clear- 
ness, we may call the two trials, the Gill recall, and the 
Dilling recall. The former was successful; the latter 
unsuccessful. 

The Gill petitions contained 11,418 names, of which 
9,626 were termed genuine by the comptroller, a 
shrinkage of sixteen per cent. Most of these petitions 
were passed by responsible persons, and all were care- 
fully checked by the Public Welfare League before 
filing. As 8,671 names were enough, the petition was 
certified " sufficient." 

Just before the filing of the Gill petitions, the 
women of Washington were enfranchised. Neither 
this occurrence nor a second recall within the one term 
of two years had been contemplated by the framers 
of the recall law. The basis for determining the num- 
ber of names necessary to institute it was " the total 
number of votes cast for the incumbent at the last 
general municipal election/' A recall election is in 
its very nature special ; therefore, in the Dilling recall, 
the vote at the Gill election became the basis for ousting 
Dilling. The evident intent had been to require 
twenty-five per cent, of the number cast at the time 
the person to be recalled was elected, not the number 
cast at the time his predecessor was chosen. But in 
Mr. Dilling's case the strict letter of the law permitted 
the institution of the recall with 8,671 votes as before, 
although at his election 62,322 votes were cast, of 
which 15,581 is twenty-five per cent. 

In the Dilling recall, the original petition contained 
332 



THE RECALL IN SEATTLE 

10,254 names, of which 7,295 were declared genuine. 
As this was insufficient, a supplementary petition of 
2,617 names was filed, checking 1,753 as genuine. 
This would have been sufficient by 377, had not 931 
withdrawals been filed before the certificate was pre- 
pared. Only 527 were checked because it was then 
perfectly apparent that the petition was insufficient. 
Had 15,581 names been necessary, the petition would 
never have been dangerous. These figures show the 
rejection of sixteen per cent, of the names on the Gill 
petition, and thirty per cent, on the Dilling petition — 
in spite of the stringent oath required from the solici- 
tors of names. 

The increase in the percentage of rejected names 
in the Dilling petitions over the Gill petitions is due 
largely to the careful checking of the latter by the 
Public Welfare League before filing them with the 
comptroller. The large number of names thrown out 
has led some people to contend that the signing of the 
petitions is not sufficiently safeguarded. The causes 
for the rejection, however, hardly sustain this position, 
for although a few fraudulent and forged signatures 
were found, most of those thrown out were names of 
women who had signed the initials of their husbands, 
thus making it impossible to identify them, and the 
names of men, not registered, or who had given in- 
correct addresses which could not be corrected from 
the records. When we consider how very careless 
the majority of people are, even in the most serious 
business affairs such as the signing of deeds, we need 

333 



THE INITIATIVE, REFERENDUM AND RECALL 

not be surprised at the large percentage of rejected 
signatures. 

It has also been the idea of some people that there 
was too much irresponsible signing. It is said that 
" you can get people to sign any sort of a petition, 
provided you don't ask them for money." This is 
supported by the fact that upon solicitation 1,100 
names were withdrawn from the Dilling petition after 
it was filed. To my own mind this is not a serious 
evil. The recall is a new political contrivance. Peti- 
tions hertofore have in the main been harmless. The 
people have to learn that now, in the case of the initia- 
tive and the recall, petitions are serious. They mean in- 
creased expense and, perhaps, all the disquiet of a 
municipal campaign. For myself, I believe that this 
evil will be less and less apparent as our voters become 
more accustomed to the workings of these democratic 
institutions. 

Mention has already been made of the fact that 
petitions were frequently passed by paid solicitors with 
every incentive to careless work. But the task of col- 
lecting the signatures of twenty-five per cent, of the 
voters is so big that it could seldom be accomplished 
without paid assistance. Others object to the passing 
of the petitions on the streets and in public places on 
the ground that it parades our civic contention before 
all our visitors. But where one person observes our 
discord in that way, a thousand may read of it in our 
newspapers. 

So far we have been examining the various parts 
334 



THE RECALL IN SEATTLE 

of the recall machinery separately. Let us now con- 
sider how the recall law as a whole has worked in 
Seattle. 

For over four years the recall remained an unused 
part of our charter. Then arose just such a situation 
as, in my opinion, the recall was designed to meet. It 
is not my purpose to portray in all its disgusting de- 
tails the alliance between our police department and 
the " vice syndicate." To be sure, Mayor Gill was 
elected on the platform of a restricted district, and 
good citizens cannot escape all blame for his success. 
But the circumstances surrounding his election afford 
some excuse. His opponent at the primary, though 
an able and worthy man, was of foreign extraction, 
a poor talker, and a man who had the reputation, 
whether deserved or not, of being unable to work with 
other men. He had been dismissed from office by 
Mayor Niller largely for that cause. For these reasons 
he was not the man around whom all the opponents of 
Gill could rally with enthusiasm. At the election Mr. 
Gill was opposed by ex-Mayor William Hickman 
Moore, a Democrat, and although Judge Moore ran 
way ahead of his ticket, partisan politics carried Mr. 
Gill into office. In accordance with his ante-election 
promises, he established a " restricted district/' but it 
proved to be " restricted " only in name. All kinds of 
vice and crime flourished there under the protection 
of the police. And the whole institution was in direct 
violation of the criminal laws of the state. Gill had 
also promised that there should be no open gambling, 

335 



THE INITIATIVE, REFERENDUM AND RECALL 

It was not long, however, until gambling joints were 
operating within a few blocks of the city hall — also 
under the protection of the police. 

One of Gill's appointees was Richard M. Arms, a 
former employee of the Seattle Electric Company, the 
corporation which owns and operates most of our 
street-car lines, and furnishes a large part of our light. 
In the latter service it competes directly with our mu- 
nicipal lighting plant. It was charged that Arms was 
operating the municipal plant in the interest of the 
Seattle Electric Company. While this was one of the 
issues in the recall campaign, it was not the main issue. 
The recall would never have been invoked except for 
the alliance between the administration and organized 
vice. 

Our charter also provides a method of impeach- 
ment of the mayor by a vote of two-thirds of the mem- 
bers of the city council, but the council, as is likely to 
be the case, would not act. It never has impeached 
an officer in the history of the city. Impeachment be- 
ing impossible, resort was made, therefore, to the re- 
call for the first time. 

The movement was started by an organization 
known as the Public Welfare League. With great 
energy the work of collecting the signatures was 
pushed. Many thought the recall unfair and un- 
American: that the voters had put Gill in and that 
he was entitled to stay ; that those who had not voted 
for him, and those who did not vote at all should 
" take their medicine.' , A great deal of excitement 

336 



THE RECALL IN SEATTLE 

and argument was necessary before the petitions were 
finally filed, but filed they were. 

A very bitter campaign followed. Behind Mr. Gill 
lined up all the old politicians, all the saloon and 
gambling element, the breweries, the pool-rooms, the 
cigar stands, the habitues of the restricted district, the 
liberal element, the men opposed to the recall " on prin- 
ciple," and a good many of the so-called " business 
men." On the other side were the Public Welfare 
League, the Municipal League, all the Protestant 
churches, the various women's clubs, and also a large 
part of the influential business and professional men. 
So great was the interest in the coming election that 
with the aid of the women the registration leaped from 
47,000 to over 72,000. 

On election day 62,322 votes were cast (about one- 
third being the votes of women), of which Dilling re- 
ceived 31,919, Gill 25,705, and Brown, the Socialist, 
4,698. ' 

The new mayor adopted the policy of strict law 
enforcement. The restricted district had been closed 
by an injunction, and remained closed. Open gam- 
bling was stopped. Wappenstein, chief of police, and 
Arms, superintendent of lighting, resigned. A month 
later every one of the Gill element in the council was 
defeated. The alliance between the city government 
and the vicious element had been most rudely shat- 
tered. 

Another important result of the election of Mr. 
Dilling was that the recall was shown to be " work- 

337 



THE INITIATIVE, REFERENDUM AND RECALL 

able." In the future its very existence should be a 
deterrent to the dishonest elective official. But to make 
it an effective deterrent, it had to be worked once. 
Gill and his friends at first scouted the idea of a suc- 
cessful recall; now the most hardened politician will 
feel unsafe. 

Some of the people of Seattle failed to realize that 
the recall was an emergency measure, and another les- 
son in its use was necessary to teach them that fact. 

The direct cause of the attempt to recall Mayor 
Dilling was his refusal to accede to the written demand 
of a " Citizens' Recall Association " to remove from 
office the head jailer, John Corbett. Charges of cruel 
and inhuman conduct were made against him, practi- 
cally all of them antedating the administration of 
Mayor Dilling. The chief of police sustained Cor- 
bett, and the mayor declared that no credible evidence 
had been produced sufficient to justify him in requir- 
ing the chief of police to dismiss him. If dismissed, 
Corbett, as a civil-service employee, could have ap- 
pealed to the civil-service commission and would have 
been entitled to a trial by that body. 

Certain reformers were also displeased by the 
mayor's veto of the anti-smoking bill, prohibiting 
smoking on the street cars, and the anti-strap-hanging 
bill, limiting the number of standing passengers in a 
street car to fifty or sixty per cent, of the seating ca- 
pacity and placing a penalty upon the company if it 
failed to furnish an intending passenger with trans- 
portation within the regular " headway " time. 

338 



THE RECALL IN SEATTLE 

In these circumstances, the old Gill crowd saw its 
chance, and proceeded to lend its strength to the recall 
movement. The whole vicious element, together with 
a number of well-intentioned men and women, signed 
the petitions, which were duly filed some six or seven 
weeks after the fight began. 

Before going further, I should say that the Asso- 
ciation had also attempted the recall of four of the city 
councilmen — Blaine, Wardall, Kellogg and Steiner. 
The Steiner petition was never filed. The other peti- 
tions were filed, but not having the required twenty- 
five per cent, even if all the signatures were genuine, 
the filing marks were cancelled, and the petitions re- 
turned to the Association. 

The petition directed at Mayor Dilling contained 
10,254 names. This total shrank to 7,295 on the third 
check. The Association tried to make good the de- 
ficiency within the ten days allowed by the charter. 
Owing to peculiar circumstances this time was 
stretched to twelve days including Labor Day and 
election day, but with the advantage of these extra and 
extraordinary days, the supplementary petition con- 
tained but 2,617 names, reduced to 1,753 by the check. 
As stated before, this was 377 more than enough. The 
corporation counsel had ruled, however, that names 
could be withdrawn, and on the faith of this, Mayor 
Dilling's friends had organized and secured about 
1,100 withdrawals. Of these 931 were filed. As the 
check of 527 showed clearly that the recall had failed, 
the comptroller went no further with the count. 

339 



THE INITIATIVE, REFERENDUM AND RECALL 

This second experience with the recall demonstrated 
that although the recall is " workable," it cannot be 
worked successfully except when there is serious cause 
for it. Save for the peculiar wording of the charter 
and the enfranchisement of the women after Gill's 
election, the Association would never have succeeded 
in collecting anything like enough names. The fail- 
ure of the second attempt put the necessary damper 
upon those persons who thought they had only to start 
a recall to make it a success. 

Naturally public opinion in Seattle is divided over 
both the principle of the recall and our own particular 
recall law. I believe the majority favor the recall 
principle and think it has fully justified its existence 
in our city charter. Many friends of the recall prin- 
ciple desire to see our law amended in various ways. 
The daily press has informed us that the charter revi- 
sion commission has approved the proposal of the 
former corporation counsel by which the signatures 
on the petition must equal five per cent, of the total 
vote cast at the election at which the incumbent was 
chosen before it is presented to the city comptroller. 
The petition is then left in his office until ten per cent, 
more have come in and signed. This plan reduces the 
percentage required but makes it, much more difficult 
to sign. It throws much more security about the sign- 
ing and does away with a great deal of the solicitation 
of signatures. To make it more difficult will destroy 
its value and relegate it along with the impeachment to 
a shelf in the political garret. Without the recall, the 

340 



THE RECALL IN SEATTLE 

people are helpless between elections; with it, and its 
efficiency unimpaired, they always have in their hands 
a power which can be exerted to bring to time an un- 
faithful or incompetent public official. Seattle's ex- 
perience has amply demonstrated the utility of the 
recall. 



CHAPTER XVI 

SOURCES AND LITERATURE 

The appended list includes references to only a 
small part of the literature relating to direct legisla- 
tion and the recall. An endeavor has been made to 
list only such discussions as have contributed sub- 
stantial arguments or trustworthy information bear- 
ing upon either side of the question. Those which 
the general reader would probably find most useful 
have been indicated by an asterisk. 

Bibliographies 

Library of Congress. Select List of References on 
Initiative, Referendum and Recall. Compiled by 
H. H. B. Meyer. Washington, 191 1. The best 
arranged and most complete list yet issued. It 
includes historical materials, books, pamphlets 
and review articles. 

Ohio State Library. Legislative Reference Depart- 
ment. Initiative and Referendum. Compiled by 
C. B. Galbreath. Columbus, 191 1. A pamphlet 
containing texts of constitutional provisions relat- 
342 



SOURCES AND LITERATURE 

ing to direct legislation in various states; also a 
useful list of books and articles. 

Wisconsin Library Commission. Comparative Legis- 
lation Bulletin, No. 21. The Initiative and Ref- 
erendum. Compiled by C. H. Talbot. Madison, 
1910. 

Wisconsin Library Commission. Comparative Legis- 
lation Bulletin, No. 12. The Recall. Compiled 
by Margaret A. Schaffner. Madison, 1907. 

These Bulletins contain accurate digests of the 
laws and judicial decisions, with well-selected lists of 
books and articles. 



Books and Pamphlets 

Barnet, James D. The Operation of the Recall in Ore^ 
gon. American Political Science Review, Vol. 
vi, pp. 41-53. 

l*Beard, C. A., & Shultz, B. E. Documents on the 
State- Wide Initiative, Referendum and Recall, 
New York, 19 12. Contains all constitutional 
amendments providing for a state-wide system 
of direct legislation, several of the most important 
statutes elaborating these constitutional provi* 
sions, together with various constitutional amend- 
ments now being submitted for adoption. Some 
significant judicial decisions are also included 
343 



THE INITIATIVE, REFERENDUM AND RECALL 

and some data regarding the recall as applied to 
state officers. 

*Beard, C. A. Digest of Short Ballot Charters. New 
York, 191 1. A collection of city charters, chiefly 
of municipalities which have adopted the com- 
mission type of government. It is an extremely 
useful compilation. 

*Bourne, Jonathan, Jr. Popular vs. Delegated Gov- 
ernment. A speech delivered in the United States 
Senate, May 5, 1910. It is a summary of the 
results of direct legislation in Oregon and a spir- 
ited defence of the system. 

Bradford, Gamaliel. The Lesson of Popular Govern- 
ment. 2 vols. New York, 1899. Especially Vol. 
ii, pp. 189-201. An argument that direct legisla- 
tion would prove an inadequate remedy for the 
shortcomings of representative government. 

Cleveland, F. A. The Growth of Democracy in the 
United States. New York, 1898. pp. 177-241. 
Some good historical data. 

*Civic Federation of Chicago. Bulletin No. 3 (1911). 
The Dangers of the Initiative and Referendum. 
A pamphlet containing several addresses in oppo- 
sition to the extension of direct legislation. 

Dodd, W. F. The Revision and Amendment of State 
Constitutions. Baltimore, 19 10. An excellent 
account, historical and critical, of the referendum 
as applied to state constitutions. 

Fabian Society. Tract No. 155. The Case Against 
the Referendum. By Clifford D. Sharp. Lon- 

344 



SOURCES AND LITERATURE 

don, 191 1. A trenchant Socialist argument 
against the reference of public questions to the 
voters. 

Frankenthal, L. J. The Initiative in Switzerland. 
61st Congress, 1st Session (1909).. Senate Doc- 
ument, No. 126. A report on the initiative in 
the Swiss Republic by the United States Vice 
Consul at Berne (May, 1908). 

Gilbertson, H. S. Conservative Aspects of the Recall. 
National Municipal Review, Vol. i, pp. 204-211. 

Godkin, E. L. Unforeseen Tendencies of Democracy. 
Boston, 1898. Especially pp. 96-144. A sug- 
gestive discussion by a far-sighted journalist. 

Hardy, Arthur S. The Initiative and Referendum. 
57th Congress, 2nd Session (1902). House Doc- 
ument No. 1, pp. 482-494 (in Serial No. 4440). 
A careful report on the workings of the initiative 
and referendum in the Swiss Republic transmitted 
by the American Minister to Switzerland (June, 
1902). 

Hartwell, E. M. Referenda in Massachusetts. Pro- 
ceedings of the National Municipal League, 1909. 
pp. 334-353- Deals chiefly with the amount of 
public interest shown at referenda elections. 

Kinkead, E. B. The Initiative and Referendum. Pro- 
ceedings of the Ohio State Bar Association, 1907. 
Vol. xxviii, pp. 145-185. An extended argument 
against direct legislation. 

Lecky, W. E. H. Democracy and Liberty. 2 vols. 
London, 1896. Especially Vol i, pp. 2yy ff. 

23 345 



THE INITIATIVE, REFERENDUM AND RECALL 

Legislation by the people in its historical relation 
to democracy and popular freedom. 

*Lobingier, C. S. The People's Law. New York, 
1909. An elaborate study of popular law-making 
mainly historical. Chapter xxvi gives a useful 
summary of the results of direct legislation in 
America. 

Lowell, A. Lawrence. Governments and Parties in 
Continental Europe. 2 vols. Boston, 1896. 
Especially Vol. ii, pp. 238-300. A study of the 
practical working of the initiative and referendum 
in the Swiss Republic. 

MacDonald, J. Ramsay. Socialism and Government. 
2 vols. London, 1909. Vol. 1. pp. 127-166. Dis- 
cusses the problem of accurately representing pub- 
lic opinion from the socialist point of view. 

Mill, J. S. On Representative Government. New 
York, 1905. Especially ch. iii-vii. 

*Oberholzer, E. P. The Referendum, Initiative and 
Recall in America. New edition, New York, 
191 1. A standard work, comprehensive in scope 
and conservative in tone. Contains historical and 
critical discussions of both the initiative and ref- 
erendum. 

*Owen, R. L. The Code of the People's Rule. 61 st 

Congress, 2d Session (1910). Senate Document 

No. 603. Especially pp. 101-129. A collection 

of constitutional provisions, statutes and ordi- 

346 



SOURCES AND LITERATURE 

nances which have been adopted as a means of 
furthering the cause of popular government. 

Parsons, Frank. The City for the People. Boston, 
1900. Especially pp. 255-386; 505-527; 605- 
629. 

Phelps, E. M. Selected Articles on the Initiative and 
Referendum. Wilson's Debaters' Handbook 
Series. Minneapolis, 1909. A number of short 
articles on both sides of the question. Bibliogra- 
phy appended. 

Pomeroy, Eltweed. Papers on Direct Legislation. 
55th Congress, 2d Session (1898). Senate Doc- 
ument No. 340 (in Serial No. 3615). A digest 
of the principal arguments in favor of direct leg- 
islation. 

Post, Louis F. The Initiative and Referendum. Pro- 
ceedings of the National Municipal League, 1906, 
pp. 363-381. An outline of the development of 
direct legislation in America. 

Ringwalt, R. C. Briefs on Public Questions. New 
York and London, 1905, pp. 50-52, 55. Con- 
tains a summary of the chief popular arguments 
for and against direct legislation. Of particular 
value to debating teams. 

Smith, J. A. The Spirit of American Government. 
New York, 1907. A brief general survey of the 
initiative, referendum and recall is contained in 
chapter xiii. 

*Stimson, Frederick J. Popular Law-making. New 
York, 1 9 10. 

347 



THE INITIATIVE, REFERENDUM AND RECALL 

Sullivan, J. W. Direct Legislation through the Ini- 
tiative and Referendum. New York, 1893. A 
forceful presentation of the case for direct legis- 
lation, now somewhat old, but still useful. 

*U'Ren, W. S. The Results of the Initiative and Ref- 
erendum in Oregon. Proceedings of the Ameri- 
can Political Science Association, 1907. Vol. iv, 
PP. 193-197- 



APPENDIX 



A LIST OF THE MEASURES SUBMITTED TO THE PEOPLE OF 
OREGON IN THE LAST FOUR ELECTIONS. 



No. 



1904. 

Direct primary law with direct selection of United States- 
senator 1 , 

Local-option liquor law 1 



1906. 

Omnibus appropriation bill, state institutions 2 

Equal-suffrage constitutional amendment 1 

Local-option bill proposed by liquor people 1 

Bill for purchase by state of Barlow toll road 1 

Amendment requiring referendum on any act calling con- 
stitutional convention 1 

Amendment giving cities sole power to amend their charters 1 

Legislature authorized to fix pay of state printer 1 

Initiative and referendum to apply to all local, special and 
municipal laws 1 

Bill prohibiting free passes on railroads 1 

Gross-earnings tax on sleeping, refrigerator and oil-car 
companies 1 

Gross-earnings tax on express, telephone and telegraph 
companies 1 .. 



1908. 
Amendment increasing pay of legislators from $120 to $400 

per session 8 

Amendment permitting location of state institutions at 

places other than the capital 3 

Amendment reorganizing system of courts and increasing 

supreme judges from three to five 3 

Amendment changing general election from June to Novem 

ber 3 



Bill giving sheriffs control of county prisoners 2 

Railroads required to give public officials free passes 2 

Bill appropriating $100,000 for armories 2 

Bill increasing fixed appropriation for State University from 

$47,500 to $125,000 annually 2 

Equal-suffrage amendment 1 

Fishery bill proposed by fish-wheel operators 1 

Fishery bill proposed by gill-net operators 1 

Amendment giving cities control of liquor selling, pool 

rooms, theaters, etc., subject to local-option law 1 

Modified form of single-tax amendment 1 

Recall power on public officials 1 

Bill instructing legislators to vote for people's choice for 

United States senators 1 

Amendment authorizing proportional-representation law 1 . . 

Corrupt-practices act governing elections 1 

Amendment requiring indictment to be by grand jury 1 .... 
Bill creating Hood River County 1 



1910. 

Amendment permitting female taxpayers to vote 1 

Act establishing branch insane asylum in eastern Oregon 3 . 



56,205 
43,316 


16,354 
40,198 


43,918 
36,902 
35,297 
31,525 


26,758 
47,075 
45,144 
44,527 


47,661 
52,567 
63,749 


18,751 

19,852 

9,571 


47,678 
57,281 


16,735 
16,779 


69,635 


6,441 


70,872 


6,36a 


19,691 


68,892 


41,971 


40,868 


30,243 


50,591 


65,728 
60,443 
28,856 
33,507 


18,590 
30,033 
59,406 
54,848 


44,115 
36,858 
46,582 
56,130 


40,535 
58,670 
40,720 
30,280 


39,442 
32,066 
58,381 


52,346 
60,871 
31,002 


69,668 
48,868 
54,042 
52,214 
43,948 


21,162 
34,128 
31,301 
28,487 
26,778 


35,270 
50,134 


59,065 
41,504 



1 Submitted under the initiative. 

2 Submitted under the referendum upon legislative act. 
8 Submitted to the people by the legislature. 

349 



APPENDIX 



Yes. 



1910— Continued. 

Act calling convention to revise state constitution* .... 

Amendment providing separate district for election of each 
state senator and representative 3 

Amendment repealing requirement that all taxes shall be 
equal and uniform 3 

Amendment permitting organized districts to vote bonds for 
construction of railroads by such districts 3 

Amendment authorizing collection of state and county 
taxes on separate classes of property 3 

Act requiring Baker County to pay $1,000 a year to circuit 
judge in addition to his state salary 2 

Bill creating Nesmith County from parts of Lane and 
Douglas 1 

Bill to establish a state normal school at Monmouth 1 

Bill creating Otis County from parts of Harney, Malheur 
and Grant 1 

Bill annexing part of Clackamas County to Multnomah 1 . . . 

Bill creating Williams County from parts of Lane and 
Douglas 1 

Amendment permitting people of each county to regulate 
taxation for county purposes and abolishing poll taxes 1 

Amendment giving cities and towns exclusive power to regu- 
late liquor traffic within their limits 1 

Bill for protection of laborers in hazardous employment, 
fixing employers' liability, etc. 1 

Bill creating Orchard County from part of Umatilla 1 

Bill creating Clark County from part of Grant 1 

Bill to establish state normal school at Weston 1 ,...,. 

Bill to annex part of Washington County to Multnomah 1 . . 

Bill to establish state normal school at Ashland 1 

Amendment prohibiting liquor traffic 1 

Bill prohibiting sale of liquor, providing for search for 
liquors, and regulating shipments of same 1 

Bill creating board to draft employers' liability law for sub- 
mission to legislature 1 

Bill prohibiting taking of fish in Rogue River except with 
hook and line 1 

Bill creating Deschutes County out of part of Crook 1 

Bill for general law under which new counties may be created 
or boundaries changed 1 

Amendment permitting counties to vote bonds for per- 
manent road improvement 1 

Bill permitting voters in direct primaries to express choice 
for president and vice-president, to select delegates to 
national conventions, and nominate candidates for presi- 
dential electors 1 

Bill creating board of people's inspectors of government, 
providing for reports of board in official state gazette to be 
mailed to all registered voters bi-monthly 1 

Amendment extending initiative and referendum,, making 
terms of members of legislature six years, increasing 
salaries, requiring proportional representation in legis- 
lature, election of speaker of house and president of senate 
outside of members, etc. 1 

Amendment permitting three-fourths verdict in civil cases 1 . 



23,143 

24,000 

37,619 

32,844 

31,629 

13,161 

22,866 
50,191 

17,426 
16,250 

14,508 

44,171 

53,321 

56,258 
15,664 
15,613 
40,898 
14,047 
38,473 
43,540 

42,651 

32,224 

49,712 
17,592 

37,129 

51.275 



43,353 
29,955 



37,031 
44,538 



1 Submitted under the initiative. 

2 Submitted under the referendum uoon legislative act. 

3 Submitted to the people by the legislature. 



350 



INDEX 



Advisory initiative and refer- 
endum, in Illinois, 96, 97; in 
Detroit, 97 ; in Grand Rapids, 
98; in Buffalo, 99; in Chi- 
cago, 99; in Canada, 100; in 
Augusta, Maine, 101 ; in Ar- 
kansas, 101 ; in various other 
states, 101 ; in Wilmington, 
Delaware, 101-103. 

Alameda, California, direct 
legislation in, 110-112, 115- 
116; use of the recall in, 116. 

Alexander, Mayor, Mayor 
Harper replaced by, in Los 
Angeles, 324, 325. 

Arizona, doctrine of referen- 
dum in, 135 ; proposed adop- 
tion of the recall in, 182; 
presidential veto of state- 
hood bill in, 211, 212. 

Arkansas, direct legislation in, 

154. 
Augusta, Maine, provisions for 
special direct legislation in, 
IOI. 

Berkeley, California, move- 
ment for direct legislation in, 
123 ; initiative and referen- 
dum established by, 154. 

Berne, Canton of, in Switzer- 
land, percentage of regis- 
tered votes polled in, 32, 157. 

Bonds, municipal, use of the 
referendum for the approval 
of, 7- 



Borrowing, municipal, the ref- 
erendum as a check upon, 39. 

Boston, provisions regarding 
nomination petitions in char- 
ter of, 30; statistics of votes 
on referenda in, 43 ; recall 
election in, 45, 46; provisions 
in charter of, concerning re-^ 
call of mayor, 49, 50, 307, 
308. 

Boundaries, municipal, use of 
referendum in determining 
changes of, 7. 

Bourne, Jonathan, Jr. : A 
Defence of Direct Legis- 
lation, 194-210: the essen- 
tials of popular government, 
io 4> J 95 ; differences between 
individual and community 
action, 195; the interaction 
of community motives, 196; 
the utilitarian justification of 
direct legislation, 197; ex- 
amples, 198, 199; the Colum- 
bia River fisheries matter, 
200, 201 ; effect of direct leg- 
islation upon representatives, 
202 ; educational value of the 
initiative and referendum, 
203; new arrangements not 
incompatible with a sound 
representative system, 204, 
205 ; the experience of Ore- 
gon, 206-211 ; the presiden- 
tial veto of the Arizona 
statehood bill discussed, 212, 



351 



INDEX 



213; value of the recall, 213, 
214; conclusions, 215. 

Bradford, E. S., on signatures 
required for initiative peti- 
tions in commission-gov- 
erned cities, 14. 

British Columbia, use of the 
advisory referendum in, 100. 

Brookline, Massachusetts, as a 
type of New England town, 
24. 

Bryce, James, on the failures 
of city government in Amer- 
ica, 93; on the success of 
democracy in Switzerland, 
155 ; on the American consti- 
tution, 257. 

Buffalo, use of the advisory in- 
itiative in, 99. 

Burke, Edmund, on the func- 
tion of a representative, 28; 
on the difference between 
statesmen and politicians, 
183, 184. 

California, conditions in, prior 
to 1909, 21 ; adoption of re- 
call in, 43, 45; home-rule 
charter movement in, 95; use 
of advisory referendum in, 
101 ; direct legislation in 
cities of, 107-116; use of re- 
call in, 116; operation of in- 
itiative and referendum in, 
154; recall of officials in 
cities of, 315-325. 

Canada, use of advisory refer- 
endum in, 100. 

Catlett, Fred W. : The Re- 



call in Seattle, 326-341 : 
adoption of recall provision 
in Seattle charter, 326; re- 
call petitions; 327; defects of 
original system, 328; method 
of gathering signatures, 329; 
verification of signatures, 
330; withdrawals, 331; the 
Gill and Dilling recall peti- 
tions compared, 332-334; the 
recall of Mayor Gill, 335- 
337; the attempted recall of 
Mayor Dilling, 338, 339 ; con- 
clusions, 340, 341. 

Cedar Rapids, Iowa, adoption 
of initiative and referendum 
by, 120. 

Charters, municipal, use of ref- 
erendum as a means of 
adopting, 7. 

Chicago, difficulty of getting 
proper legislation for, 21 ; 
use of advisory initiative and 
referendum in, 99; Civic 
Federation of, attitude of, on 
direct legislation, 279. 

Citizens' Recall Association, in 
Seattle, 338. 

Cleveland, use of referendum 
to prevent grant of franchise 
in, 104. 

Colorado, home-rule charter 
movement in, 95 ; adoption of 
referendum by, 135 ; direct 
legislation established in, 154. 

Columbia River, questions re- 
lating to salmon fisheries in, 
173 ; submitted to popular 
vote, 200; as an example of 



352 



INDEX 



matters passed upon at direct 
elections, 286. 

Commission government, rela- 
tion of, to direct legislation, 
13 ; use of initiative petitions 
in cities under, 14; adoption 
of recall in cities having, 43; 
use of initiative and referen- 
dum facilitated by, 1 18-122. 

Connecticut, adoption of amend- 
ments to constitution of, by- 
referendum, 128. 

Constitutional limitations, rela- 
tion* of, to legislative de- 
terioration, 18, 25. 

Conventions, results of nomi- 
nations in, 17. 

Corrupt Practices Acts, as part 
of a progressive programme, 
54; adopted in Oregon, 144, 
145, 228. 

Councils, municipal, reduction 
in size of, as an important 
reform, 20. 

Croly, Herbert, on the new na- 
tionalism, 52. 

Dallas, Texas, direct legisla- 
tion in, 119; recall of school 
directors in, 303, 304. 

Danville, Illinois, election 
frauds in, 207. 

Davis, Thomas A. : The Re- 
call as a Measure of Pop- 
ular Control, 313-320: con- 
ditions in American cities 
before the appearance of the 
recall, 313; the recall in Los 
Angeles, 314, 315; is the re- 



call fair? 316, 317; the need 
of the recall in New Jersey, 
318. 

Dealey, J. Q., on general ten- 
dencies in state constitutions, 
18. 

Defence of Direct Legisla- 
tion, by Jonathan Bourne, 
Jr., 194-210. 

Democratic party, the present 
opportunity of, 83, 84. 

Delegates, election of, to na- 
tional conventions, by popu- 
lar vote, 173, 174. 

Delegation of legislative 
powers, constitutional objec- 
tions to the referendum as 
a, 8. 

Denison, Texas, referendum 
and recall in, 119. 

Denver, direct legislation in, 
118, 150, 151. 

Des Moines, adoption of com- 
mission government in, 13 ; 
direct legislation established 
by, 120, 154; form of ballots 
in, 125 ; threatened use of re- 
call in, 301, 302. 

Detroit, use of advisory refer- 
endum in, 97. 

Development of Direct Leg- 
islation in America, by 
Robert Treat Paine, 93-124. 

Dilling, Mayor, attempted re- 
call of, in Seattle, 338-340. 

Direct legislation. See Initia- 
tive and Referendum. 

Direct primaries, their relation 
to other reforms, 54, 55. 



353 



INDEX 



Education, political, value of 
direct legislation as a means 
of, 21, 24, 203, 221, 222; op- 
portunities for, in Oregon, 
211. 

El Paso, use of the referendum 
in, 119. 

Emergency laws, excluded 
from scope of initiative, 11. 

Employees, municipal, attitude 
of, to the referendum, 38. 

Employers' liability, action of 
Oregon voters on proposals 
concerning, 263, 264. 

Estacada, Oregon, use of the 
recall in, 303. 

Eureka, California, use of the 
initiative and referendum in, 
110-112. 

Experts, municipal, relation of 
recall to question of, 48. 

Fawcett, Mayor, recall of, in 
Tacoma, 309. 

Fisheries, in Columbia River, 
questions submitted to voters 
concerning. See Columbia 
River. 

Folk-Moot, Anglo-Saxon, meth- 
ods of direct legislation in, 

153. 
Ford, Henry J., on powers of 

party bosses, 79. 
Fort Worth, Texas, use of the 

referendum in, 119; attempt 

to recall a commissioner in, 

302. 
Franchises, the grant of, by 

referendum, 7; direct legis- 



lation in its relation to, 11; 
attitude of voters at refer- 
enda concerning, 37; use of 
initiative and referendum in 
making grants of, 104, 223. 

Fresno, California, direct leg- 
islation in, 108, in; use of 
recall in, 116. 

Fribourg, Canton of, in Swit- 
zerland, absence of initiative 
and referendum in, 156, 157. 

Galveston, adoption of com- 
mission government in, 13 ; 
use of the referendum in, 
118, 119. 

Geneva, Illinois, advisory in- 
itiative in, 96, 97. 

Georgia, recognition of initia- 
tive in first constitution of, 5. 

Gill, Mayor, recall of, in Se- 
attle, 328-337- 

Gloucester, Massachusetts, rec- 
ognition of direct legislation 
in new charter of, 122, 154. 

Grand Junction, Colorado, pro- 
visions for direct legislation 
in charter of, 154. 

Grand Rapids, Michigan, ad- 
visory initiative and referen- 
dum in, 98. 

Greenville, Texas, referendum 
and recall established in, 119. 

Harper, Mayor, recall of, in 
Los Angeles, 303, 323-325- 

Hartwell, E. M., on referenda 
in Massachusetts, 33, 34. 

Haverhill, Massachusetts, pro- 



354 



INDEX 



visions for direct legislation 
in new charter of, 122, 154. 

Haynes, George H. : A Year 
of the People's Rule in 
Oregon, 233-278 : prepara- 
tions for the general election 
of 1910, 233; publicity en- 
gineering, 234; the People's 
Power League, 235 ; ex- 
amples of measures sub- 
mitted, 235-240; analysis of 
chief proposals, 241-249; the 
campaign of 1910, 249-253 ; 
the -campaign book, 254, 255 ; 
effect of Corrupt Practices 
Law in Oregon, 256; size of 
ballot, 257; results of voting 
on different measures, 258- 
273 ; general conclusions, 274- 
278. 

Holman, Frederick V. : The 
Unfavorable Results of Di- 
rect Legislation in Ore- 
gon, 279-297: political prob- 
lems of Oregon, 279; Ore- 
gon's lessons for other states, 
280, 281 ; ten years of direct 
legislation, 282; its short- 
comings, 282, 283; size of 
votes polled, 284, 285; ex- 
amples of measures sub- 
mitted to the people, 286 ; the 
case of the University, 287, 
288; the single-tax proposal, 
288, 289; other proposals, 
290, 291 ; virtual abolition of 
trial by jury, 291-294; cum- 
brous nature of ballots, 295; 
summary of results, 296, 297. 



Home-rule charters, adoption 
of, by referendum, in Mis- 
souri, 95 ; in California and 
other states, 95. 

Houston, Texas, provision for 
referendum in charter of, 119. 

Illinois, provisions relating to 
advisory referendum in, 12, 
96, 97 ; public opinion law in, 
99; proposals to adopt man- 
datory initiative and referen- 
dum in, 281, 282. 

Indiana, adoption of advisory 
initiative by, 101 : popular 
approval of public service 
franchises required by laws 
of, 104. 

Initiative and Referendum, 
definition and early history 
of, 1-6; development of, in 
the United States, 7-15; ex- 
tension of, to cities, 97-100; 
use of, in recent years, 235- 
256; part of Progressive pro- 
gramme, 54-64. 

Arguments for: general, 
18-24; an effective agency of 
popular responsibility, 85- 
90; not antagonistic to rep- 
resentative government, 146- 
149 ; voters will not act hast- 
ily, 196-198; examples of im- 
provements secured by use of, 
199-201 ; as a check on self- 
ish legislation, 202 ; as an 
agency of political educa- 
tion, 203 ; secures protection 
against insincere legislation, 



355 



INDEX 



210; relieves legislatures 
from pressure of political 
bosses, 219; alleged defects 
are easily remedied, 230 ; char- 
acter of the measures actu- 
ally submitted, 238-242; the 
experience of Oregon has 
been satisfactory, 273-278. 

Arguments against: gen- 
eral, 25-42; contrary to prin- 
ciples of representative gov- 
ernment, 166-169; will lower 
the plane of popular repre- 
sentation, 27, 178; places too 
great a burden on the ballot, 
29, 30, 221, 222; does not 
weaken influence of political 
organizations, 31 ; American 
experience with local refer- 
enda, 33, 34, 295, 296; does 
not permit a full expression 
of electoral opinion, 40, 284, 
285; abolishes distinction be- 
tween constitutional and or- 
dinary laws, 41, 129, 130; en- 
courages ill-considered legis- 
lation, 221 ; requires improve- 
ment in details, 223; loose 
and careless phraseology of 
measures submitted, 282, 
283; causes delay in urgent 
matters, 287, 288; has been 
highly unsatisfactory in Ore- 
gon, 289-295. 

Introductory, by W. B. Mun- 
RO, 1-51. 

Iowa, adoption of recall in, 43; 
initiative and referendum on 
franchises in, 103, 104; rela- 



tion of direct legislation to 
commission government in, 
120. 
Issues of Reform, by Wood- 
row Wilson, 69-91. 

Jefferson, Thomas, political 
ideas of, 163, 167. 

Johnson, Lewis Jerome: Di- 
rect Legislation as an 
Ally of Representative 
Government, 139-163 : the 
need of political reconstruc- 
tion, 139, 140; the funda- 
mental defect of modern 
legislative mechanism, 140, 
141 ; the proper channels of 
popular control, 141-143; the 
Oregon system, 144, 145; not 
antagonistic to representative 
government, 146-149 ; actual 
results of direct legislation, 
150, 151; what the system 
can achieve, 151-153; its re- 
sults abroad, 154-158; the 
problem in America, 159, 
160 ; American political ideals 
as stated in the constitution 
of Massachusetts, 161 ; con- 
clusions, 162, 163. 

Judiciary, proposed recall of, 
184-186. See also Recall. 

Junction City, Oregon, recall 
of mayor in, 303. 

Kansas, advisory initiative in, 
101. 

Kansas City, home rule charter 
system in, 94; direct legisla- 
tion and the recall in, 122. 



356 



INDEX 



Labor, organized, attitude of, 
to direct legislation, 38, 262. 

Landesgemeinde, Swiss, de- 
velopment of direct legisla- 
tion idea in, 153. 

Leavenworth, Kansas, referen- 
dum in, 121. 

Legislatures, decline in capacity 
of, 17; lack of leadership in, 
18; present prestige of, 25; 
centralization of responsibil- 
ity in, 75 ; proposed reorgan- 
ization of, as exemplified in 
Oregon, 244-246. See also 
Representative Government. 

Lewiston, Idaho, establishment 
of initiative and referendum 
in, 121 ; recall in, 305. 

Limitations, constitutional. See 
Constitutional Limitations. 

Lincoln, Abraham, political 
ideas of, 140, 167; would 
have been subject to recall, 
184. 

Lincoln, Nebraska, referendum 
in, 105. 

Liquor laws, referenda on, 33, 
250, 251. 

Long Beach, California, estab- 
lishments of initiative and 
referendum in, no, in; re- 
call in, 116. 

Los Angeles, adoption of recall 
in, 42; recall put in opera- 
tion by, 45 ; initiative and 
referendum in, 108-114; re- 
call of Mayor Harper in, 
116, 303, 321-325; procedure 
in filing recall petitions in, 



314-316; removal of a mu- 
nicipal councillor in, 322, 
323- 
Lowell, A. Lawrence: The 
Referendum in the United 
States, 126-138: the adapta- 
tion of an institution to its 
environment, 126; the early 
use of the constitutional ref- 
erendum in Massachusetts, 
127; its spread and subse- 
quent development, 128; its 
extension to ordinary law- 
making, 129; the referendum 
in actual operation, 130-132 ; 
its present extent, 133-135; 
the experience of Oregon, 
I 35~ I 37 ; the value of Ameri- 
can experience, 138. 

McCall, Samuel W. : Repre- 
sentative AS AGAINST DlRECT 
Legislation, 164-193 : the 
novelty of direct legislation 
proposals, 164; the "Progres- 
sive" propaganda, 165; the 
political ideas of Madison 
and Jefferson, 166; what 
the framers of the federal 
constitution sought to do, 
167, 168; the essential aims 
of government, 168 ; the indi- 
vidual as the chief end of 
government, 169; the initia- 
tive analyzed, 170, 171 ; the 
Oregon experience, 172 ; the 
Columbia River fisheries em- 
broglio as an example, 173 ; 
relation of direct legislation 



357 



INDEX 



to the rights of minorities, 
174; general shortcomings of 
the initiative, 175, 176; limi- 
tations upon a free use of 
the referendum, 176, 177; its 
effect in removing responsi- 
bility from representatives, 
178; the political indifference 
of the electorate, 179; the 
vice of over-legislation, 180; 
the recall, 181 ; provisions 
relating to it in Arizona and 
Oregon, 182 ; its pernicious 
features, 182-184; the recall 
of judges, 185; the de- 
mocracy of Athens, 186, 187 ; 
the experience of Switzer- 
land, 189-191 ; a plea for sane 
methods of reform, 192, 193. 

Maine, constitutional amend- 
ments excluded from scope 
of initiative in, 10; present 
arrangements concerning di- 
rect legislation in, 106, 154. 

Maryland, early use of referen- 
dum in, for adoption of stat- 
utes, 6. 

Massachusetts, adoption of con- 
stitution by referendum in, 
5; statistics of voting at ref- 
erenda in, 33; incorporation 
of cities by referendum in, 
92, 93; provision for advis- 
ory initiative in constitution 
of, 101 ; use of referendum 
in, in making constitutional 
amendments, 127, 131, 132; 
suggestion of recall in origi- 
nal constitution of, 143. 



Memphis, use of initiative and 
referendum on municipal 
franchises in, 104. 

Michigan, home-rule move- 
ment in cities of, 95; advis- 
ory initiative in, 101. 

Mill, John Stuart, on popular 
responsibility, 22. 

Milwaukee, movement for di- 
rect legislation in, 123. 

Minnesota, home-rule move- 
ment in cities of, 95. 

Mississippi, use of popular in- 
itiative for adoption of com- 
mission charters in, 122. 

Missouri, restrictions on use of 
initiative in, 10; beginnings 
of home-rule charter move- 
ment for cities in, 94; refer- 
endum adopted by, 135 ; use 
of direct legislation by, 154. 

Montana, limitations on use of 
initiative petitions in, 10; 
adoption of provisions for 
direct legislation by, 106, 

135, 154- 
Munro, W. B. : Introductory, 
1-51 : significance of the di- 
rect legislation movement, 
1, 2 ; reasons for its spread, 
2-4; early examples of the 
initiative and referendum, 5, 
6; use of the constitutional 
referendum, 6-8 ; application 
of the mandatqry referen- 
dum to ordinary laws, 9; 
machinery of direct legisla- 
tion, 10, 11; the Illinois sys- 
tem, 12; use of direct legis- 



358 



INDEX 



lation in cities, 13, 14; rela- 
tion of the system to repre- 
sentative government, 15-18; 
the steady reduction in 
powers of legislatures, 19, 
20; arguments in favor of 
the initiative and referendum, 
20-24 ; arguments against, 
24-32; statistics of votes 
polled at referenda, 33, 34; 
nature of popular interest in 
referenda, 35, 36; electoral 
tendencies, 36-39; merits and 
faults of direct legislation in 
practice, 40-42; the recall, 
42-50; history of the recall, 
42, 43 ; machinery of the re- 
call, 43-45; the recall in 
operation, 44-46 ; arguments 
for and against the recall, 
47-51. 

National conventions, election 
of delegates to, by popular 
vote, 55, 173, 174- 

Nationalism and Popular 
Rule, by Theodore Roose- 
velt, 52-58. 

Nebraska, direct legislation in, 
105. 

New England, direct legisla- 
tion idea in town-meeting 
system of, 153 ; use of initia- 
tive and referendum in cities 
of, 159-162. 

New Hampshire, provision for 
instructing representatives in 
constitution of, 5; use of ad- 
visory initiative in, 101 ; 



amendment of constitution 

by referendum in, 127. 
New Jersey, agitation for 

adoption of recall in, 316- 

318. 
New Mexico, referendum 

adopted by, on admission to 

statehood, 9, 135. 
Newport, Rhode Island, sys- 
tem of city government in, 

122. 
New York City, reduction in 

powers of municipal council 

in, 25, 26. 
Nevada, advisory initiative in, 

121 ; referendum adopted by, 

135- 

Nominations, direct, as a re- 
medial measure, 18; prob- 
lems of party organization 
connected with, 78-81. 

North Carolina, advisory in- 
itiative in, 101. 

North Dakota, direct legisla- 
tion provisions adopted by, 
122. 

Norway, democratic frame of 
government in, 63. 

Oberholtzer, E. P., on direct 
legislation, 129, 130. 

Ohio, advisory initiative in, 
101 ; use of the referendum 
in, for grant of franchises, 
104. 

Oklahoma, requirement for in- 
itiative signatures in, 11; 
provisions against frequent 
resubmission of the same 



359 



INDEX 



question to voters in consti- 
tution of, 12 ; adoption of re- 
call in, 43; home rule for 
cities of, 95; initiative and 
referendum adopted by, 106, 
J 07, 135; issue of publicity- 
pamphlet in, 144-146; work- 
ing of direct legislation in, 
154. 

Omaha, adoption of initiative 
and referendum by, 105. 

Oregon, actual use of direct 
legislation in, 14, 15 ; adop- 
tion of recall by voters of ; 
43, 45, 182; home-rule move- 
ment in, 95; direct legisla- 
tion in, 106, 135-137, 176, 
177; the recall arrangements 
in, 135; Corrupt Practices 
Act of, 144, 145; state pub- 
licity pamphlets of, 144-146; 
measures adopted by direct 
legislation in, 154, 189, 200, 
201, 204, 205, 217, 225-227, 
233 ff., 258; probable results 
of recall arrangements in, 
182; statistics of referenda 
in, 215, 224, 285, 286; extent 
of representative lawmaking 
in, 207; analysis of measures 
submitted to voters of, 225- 
227; campaign book of, 236; 
People's Power League 
of, 235, 236; constitutional 
amendment relating to ju- 
dicial procedure in, 237, 238; 
proposed reconstruction of 
legislature in, 244-246; direct 
legislation literature in, 254; 



action of voters on proposed 
employers' liability measure 
in, 263, 264; on taxation 
measures, 265-268; summary 
of results of direct legisla- 
tion in, 273-278; population 
and political problems of, 
279 ; matter of University ap- 
propriations in, 287, 288; 
right of the citizen to trial 
by jury impaired by popular 
vote in, 289-295; actual use 
of recall in, 303; application 
of recall to judiciary, 305. 
See also Year of the Peo- 
ple's Rule in Oregon and 
Unfavorable Results of Di- 
rect Legislation in Oregon. 

Paine, Robert Treat: The 
Development of Direct Leg- 
islation in America, 93- 
124: origin of the referen- 
dum, 92; its relation to 
American theories of govern- 
ment, 93; beginnings in 
America, 94, 95; the advis- 
ory referendum, 96; use of 
the referendum in cities, 97; 
votes at referenda in various 
cities, 98-100; the referendum 
in state constitutions, 101 ; 
referenda on ordinances and 
franchises, 102-104; spread 
of direct legislation provi- 
sions in city charters, 104- 
110; initiative petitions, 11 1, 
112; the experience of Los 
Angeles, 112- 114; rise of di- 



360 



INDEX 



rect legislation in other Cali- 
fornia cities, 115, 116; in 
Oregon and Washington, 
116, 117; in Iowa, Idaho and 
other states, 118-121; in 
Massachusetts, 122 ; the 
Newport plan, 123 ; merits of 
the system, 124, 125. 
Pamphlets. See Publicity. 
Parties, political, desirability 
of, in the conduct of repre- 
sentative government, 76, 77; 
nominating machinery pro- 
vided by, 78; realignment of, 
83, 84. 
Pasadena, California, direct 
legislation in, 110-112; recall 
in, 116. 
Pennsylvania, provisions for 
instructing representatives in 
the constitution of, 5; pres- 
ent legislative conditions in, 
21 ; advisory initiative in, 101. 
People's Power League, in 
Oregon, work of, for direct 
legislation, 235, 236. 
Petitions, percentage of signa- 
tures required for initiative, 
in South Dakota, 9; in Ok- 
lahoma, 11; in various cities, 
14, in; difficulty of gather- 
ing signatures for, 29, 30; 
for setting the recall in oper- 
ation, 43, 305-307; proper 
number of signatures for, 
223 ; method of obtaining sig- 
natures for, 282; withdrawal 
of signatures from, 331; the 
experience of Seattle in the 

24 361 



matter of supplementing 
number of signatures on, 332. 

Plymouth, Colony of, direct 
legislation idea in, 153. 

Portland, Oregon, direct legis- 
lation in, 117, 150, 218; sta- 
tistics of referenda in, 228, 
229. 

Practical Workings of the 
Initiative and Referendum 
in Oregon, by Joseph N. 
Teal, 217-232. 

Progressive party, program 
of, 53, 54, 64. 

''Promise of American Life," 
by Herbert Croly, 52. 

Proportional representation, 
proposed in Oregon, 243, 244. 

Public Opinion Law, in Illi- 
nois, 99. 

Public Welfare League, of Se- 
attle, work of, in checking 
signatures, 333; part of, in 
recall elections, 336. 

Publicity, method of, at di- 
rect legislation elections, 11; 
arguments for and against 
submitted questions issued 
in pamphlet form, 23; value 
of, 203 ; various means of S2' 
curing, 208; experience in 
the matter of, in Oregon, 233, 
234, 254. 

Recall, definition of, 1 ; origin 
of, 42, 298; development of, 
in America, 43 ; machinery 
of, 44; actual use of, in 
America, 45, 301-304, 323- 



INDEX 



325; as applied to the ju- 
diciary, 88, 184-186; in Cali- 
fornia cities, 116, 117; in Ore- 
gon, 117, 205; as applied to 
administrative officials, in 
Washington, 118; in Massa- 
chusetts, 143; in Arizona, 
182; provisions relating to, 
in the Articles of Confedera- 
tion, 298; provisions against 
the re-election of recalled of- 
ficials, 310; constitutionality 
of, 321 ; used successfully in 
Los Angeles, 323-325; in Se- 
attle, 326-341. 

Arguments for: enforces 
official responsibility, 46, 47; 
allows lengthening of official 
terms, 48; not likely to be 
used injudiciously, 198; does 
not result in frequent elec- 
tions, 213; analogy of office- 
holding to private employ- 
ment, 214, 215; its beneficial 
results as shown by experi- 
ence, 298-302, 312-315. 

Arguments against: detri- 
mental effect upon public of- 
ficials, 48, 182, 183; probable 
effect of, at critical periods, 
in American history, 184; as 
stated in presidential veto of 
Arizona Statehood Bill, 212; 
its expensiveness, 311; the 
difficulties to which it leads 
in operation, 326-340. 
Recall, as a Measure of Pop- 
ular Control, by Thomas 
A. Davis, 313-320. 



Recall in Los Angeles, by 
Charles D. Willard, 321- 

325. 

Recall in Seattle, by Fred 
W. Catlett, 326-341. 

Recall, Use of, in the United 
States, by Herbert H. 
Swan, 298-312. 

Referendum. See Initiative 
and Referendum. 

Referendum in the United 
States, by A. Lawrence 
Lowell, 126-138. 

Representative as against 
Direct Legislation, by Sam- 
uel McCall, 164-193. 

Representative government, re- 
lation of, to initiative and 
referendum, 1-4; difficulties 
in the way of legislation 
under, 21, 22 ; true nature of, 
according to Edmund Burke, 
28; relation of recall to, 47; 
relation of, to voters, 60, 61 ; 
possible effect of direct leg- 
islation on, 147, 148, 165-168, 
203, 204, 231, 232. 

Riverside, California, direct 
legislation in, 110-112, 115; 
recall in, 116. 

Roosevelt, Theodore : Na- 
tionalism and Popular 
Rule, 52-68: the meaning of 

. nationalism, 52, 53; the need 
for a progressive national 
policy, 53, 54; a programme 
of progress, 54, 55 ; the value 
of the initiative and referen- 
dum, 56-58; the experience 



362 



INDEX 



of Oregon, 59; the faults of 
representative legislation in 
practice, 60-62; the lessons 
of history, 63, 64; the ends 
which direct legislation will 
achieve, 65-68. 

Sacramento, California, direct 
legislation in, 110-112. 

San Antonio, Texas, referen- 
dum in, 119. 

San Bernardino, California, re- 
call of councilmen in, 303; 
direct legislation in, no, in; 
recall in, 116. 

San Diego, California, direct 
legislation and recall adopted 
by, no, in, 116, 117. 

San Francisco, initiative and 
referendum in, 107, 108, in; 
recall in, 116. 

Santa Cruz, California, direct 
legislation in, 110-112; recall 
adopted by, 116. 

Santa Monica, California, di- 
rect legislation and recall es- 
tablished in, 110-112, 116. 

Seattle, use of recall in ; 44, 45, 
117, 118, 304, 326-341. 

Senators, popular election of, 
54, 55, 66, 67. 

Sioux City, Iowa, direct legis- 
lation and recall established 
in, 120. 

Sioux Falls, South Dakota, in- 
itiative, referendum and re- 
call adopted in charter of, 
121. 



Sources and Literature, 342- 
347- 

South Dakota, initiative and 
referendum first applied to 
ordinary laws in, 9; restric- 
tions on use of initiative pe- 
titions in, 10; adoption of 
recall by, 43; nature of bal- 
lot used in, 136; experience 
of, with direct legislation, 

154. 

Spokane, Washington, refer- 
endum in, 118. 

St. Joseph, Missouri, agitation 
for direct legislation in, 123; 
nature of recall procedure es- 
tablished by, 305. 

St. Louis, experience of, as a 
home-rule charter city, 94. 

Statutes, multiplication of, by 
use of the initiative, 191, 192. 

Swan, Herbert S. : The Use 
of the Recall in the 
United States, 298-312: ori- 
gin of the recall, 298; theory 
on which its use rests, 299; 
the infidelity of representa- 
tives, 300; value of the re- 
call, 301 ; does not interfere 
with efficient officers, 302; 
use of the recall, in San Ber- 
nardino and Los Angeles, 
303; other examples, 303- 
305; safeguards surrounding 
the recall, 306, 307; recall 
machinery, 307, 308; the fill- 
ing of unexpired terms, 309, 
310; objections to the recall, 
311; its service in improv- 



363 



INDEX 



ing municipal government, 
312. 
Switzerland, early experience 
with referendum in, 31, 32; 
compulsory voting in cantons 
of, 32; origin of recall in, 
42; results of direct legisla- 
tion in, 59, 154; as a suc- 
cessful democracy, 155-158, 
189-191. 

Tacoma, Washington, use of 
recall in, 304; removal of 
Mayor Fawcett in, 309. 

Taxation, action of electorate 
in matters of, 288, 289. 

Teal, Joseph N. (of Portland, 
Oregon) : The Practical 
Workings of the Initiative 
and Referendum in Oregon, 
217-232; beginnings of agita- 
tion for direct legislation in 
Oregon, 217; adoption of 
the system, 217, 218,' exten- 
sion to cities, 218; reasons 
for favorable action, 219; 
objections to direct legisla- 
tion stated and answered, 
220, 221 ; changes suggested 
in system, 222, 223; illustra- 
tion of measures submitted, 
224; nature of proposals de- 
feated, 225, 226; nature of 
proposals adopted, 227, 228; 
municipal ordinances sub- 
mitted in Oregon, 228, 229; 
general workings of system, 
230, 231 ; its relation to rep- 
resentative government, 232. 

364 



Tennessee, advisory initiative 
in, 101. 

Texas, use of referendum on 
matters of party policy by, 
12; direct legislation in, no, 
in. 

Toronto, Canada, use of ad- 
visory referendum by, 100. 

Town government, in New 
England, the referendum as 
an essential feature of, 24, 
63, 72. 

Unfavorable Results of Di- 
rect Legislation in Oregon, 
by Frederick J. Holman, 
279-297. 

Use of the Recall in the 
United States, by Herbert 
S. Swan, 298-312. 

Utah, adoption of initiative 
and referendum in, 9, 135. 

Vallej o, California, initiative 
in, 108, in; recall in, 116. 

Vanderburg, Senator, resolu- 
tion introduced in Oregon 
legislature by, 217. 

Vermont, advisory initiative in, 
101. 

Victoria, British Columbia, use 
of referendum in, 100. 

Vidette, The, its early ad- 
vocacy of direct legislation 
in Oregon, 217. 

Voters' League, of Los An- 
geles, 113. 

Voting, preferential, 20. 



INDEX 



Waco, Texas, use of referen- 
dum in, 119. 

Washington, state of, adoption 
of recall in, 43, 118; direct 
legislation in, 117, 118; mu- 
nicipal officials recalled in, 

304- 

Wichita, Kansas, referendum 
provision in, 121. 

Wilmington, Delaware, provi- 
sions for initiative and refer- 
endum in, 101-103. 

Wilson, Woodrow : The Issues 
of Reform, 69-91 : deteriora- 
tion of representative ma- 
chinery, 69, 70; old formulas 
of government, 71, 72; the 
irresponsibility of governing 
organs, 73, 74; the absence 
of real legislative leadership, 
75; public opinion and po- 
litical parties, 71-77; defects 
of present-day nominating 
machinery, 78, 79; bossism 
in politics, 80; the American 



political awakening, 81, 82; 
the opportunity it affords, 83, 
84; the remedies, 85, 86; di- 
rect legislation as an effec- 
tive agency of popular re- 
sponsibility, 87; the recall, 
88; the curbing of privilege, 
89, 90. 

On merits of direct legisla- 
tion, 174, 175. 

Winnetka, Illinois, system of 
pledging candidates in, 96. 

Wisconsin, progressive legisla- 
tion in, 54; use of initiative 
in, 122, 123. 

Woman suffrage, in Oregon, 
253 ; effect of, in Seattle, 332. 

Year of the People's Rule 
in Oregon, by George H. 
Haynes, 233-278. 

Zurich, Canton of, in Switzer- 
land, direct legislation in, 
157. 



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